No to CAC proposal

["Michael H. Berkens, President" <mike@xxxxxxxxxxxxxxxxxxxxx>]

On November 11th the Czech Arbitration Court (CAC) proposed a quick,  
cheap,  fast track UDRP process.
By reducing the complaint form to a bare minimum, a very low  
application fee, and without providing any penalty for losing, this  
process will encourage parties to “take a shot” to get domains away  
from the current holders.
This is how the CAC itself describes the proposal:

“The so called Expedited Decision Case (EDC) as proposed is a simple  
and straightforward procedure, which will carry a “substantially lower  
filing fee” and  require a “substantially shorter complaint”.
This proposal came directly from the Czech Arbitration Court which  
although  has no independent authority to do so is attempting to  
unilaterally adopt UDRP policy changes.
The EDC would not allow for 3 member panels.

By significantly reducing the costs of filing complaints we can only  
anticipated an increased UDRP filings.
Further, if this UDRP arbitration provider is allowed to unilaterally  
adopt new UDRP policies we can only expect other  ICANN-accredited  
providers offer their own fast-track processes and additional  
incentives to gain market share of UDRP complaints.
The UDRP and WIPO auctions were set up as  a “legal proceedings” which  
was implemented to protect parties rights in and to domain names.
It is now, through this proposal and WIPO’s announced plans for its  
own fast track process, turning it into a competivie business where  
each ICANN approved provider is going to be promoting its services to  
its biggest customers, namely trademark holders by outdoing each other  
in quicker, cheaper methods which ensure better results for the  
trademark holders.
UDRP and WIPO’s are moving in a direction where it is no longer about  
“justice”, but about becoming a profit center, a money making  
enterprise, which is very troubling.
I also agree with the ICA’s statement on this matter that:

We hereby endorse and restate the comments of Mr. George Kirikos :

""The CAC proposal represents an invitation to large-scale assembly  
line Reverse Domain Name Hijacking, and a further erosion of the  
rights of registrants to due process.
UDRP providers are supposed to be neutral, but the pro-complainant  
bias is evident in the proposal.
For example, Rule 15(e) of the UDRP states:

http://www.icann.org/en/udrp/udrp-rules-24oct99.htm

“If after considering the submissions the Panel finds that the  
complaint was brought in bad faith, for example in an attempt at  
Reverse Domain Name
Hijacking or was brought primarily to harass the domain-name holder,  
the Panel shall declare in its decision that the complaint was brought  
in bad faith and
constitutes an abuse of the administrative proceeding.”

This is supposed to happen even in cases where there is no response by  
the domain name registrant. However, pages 14 and 15 of the CAC draft  
decision
template leaves out that possibility entirely:

http://www.icann.org/en/dndr/udrp/cac-proposed-supplemental-rules-11nov09-en.pdf

It even permits the complainant to *write* the “facts” of the case  
(section 4 of page 15 of the above document). Panelists are simply  
left to work the
assembly line, checking boxes of “yes” or “no”, with a heavy bias  
towards “yes”.
The pricing schedule even permits negotiation between the complainants  
(section g of page 10) and CAC over fees for getting bulk discounts  
for bringing
multiple complaints to their forum in a calendar year. This is further  
evidence of bias — real courts do not provide quantity discounts to  
encourage forum
shopping.

The facts are that the amount of cybersquatting has been going down  
substantially, as monetization of TM domain names via PPC and other  
methods has
been substantially eroded as Yahoo, Google and other advertising  
networks improved the policing of their systems. This has resulted in  
a decrease in UDRP
cases and even TM lawsuits.

Instead of rejoicing at this positive outcome, UDRP providers resent  
the loss of business. In order to combat that loss of business, we see  
the
ever-expanding definition of “cybersquatting” by them. NAF openly  
admitted this in their IRT comments:
http://forum.icann.org/lists/irt-final-report/msg00178.html

“Panelists have taken the opportunity, over time, to agree with those  
complainants and broaden the scope of the UDRP, but it started out as
a mechanism only for clear cut cases of cybersquatting.”

Panelists are supposed to be unbiased and neutral, not opportunists  
who stretch the rules in order that more and more marginal cases are  
brought through their
doors. UDRP was designed for clear-cut cases, period.

It is high time that ICANN evaluated the UDRP providers and sought  
public comment as to whether they have been neutral. This should  
include contacting
participants (complainants *and* respondents) of past cases, as well  
as domain name registrants, via mandatory email through registrars  
educating them as to
the implications of policy changes.

The Wall Street Journal had an important article demonstrating how  
providers like NAF have been in turmoil:
http://online.wsj.com/article/SB125548128115183913.html?mod=googlenews_wsj

“Banks “don’t need the taint that comes with mandatory arbitration.”

“While telling consumers that it was an impartial arbitrator, NAF  
worked closely with creditors, the regulator claimed, including  
drafting claims against consumers.”
“Former arbitrators, a congressional subcommittee, consumers and  
government suits are now alleging that NAF has been systematically  
ruling against consumers for years.”
“A congressional subcommittee, which began an investigation last year  
to study the fairness of mandatory arbitration, concluded in July that  
the current arbitration system is “ripe for abuse.” Arbitration, as  
“operated by NAF, does not provide protection for those consumers,”  
the committee said.
“Before that case, she had ruled in favor of credit-card companies 18  
consecutive times, she told the committee. She says she finished  
several pending NAF cases after she ruled for the card holder, but  
then wasn’t given more cases. The official reason the NAF gave for  
canceling more work was scheduling conflicts. But Ms. Bartholet said  
in an interview that an NAF manager told her she was likely removed  
because she ruled for the debtor.”
In conclusion, these kinds of proposals by the UDRP providers should  
be rejected, and represent a perversion of the system of justice that  
domain name registrants rely upon. It is clear they were created only  
in consultation with complainants, and not with normal domain  
registrants in the loop. The right to due process demands a higher  
standard than that shown to date.
ICANN staff and the GNSO should prepare an issues report, and perhaps  
fund independent scholarly research like that conducted by Professor  
Michael Geist
in the past:

http://www.udrpinfo.com/

To eliminate forum shopping, cases should be randomized between all  
providers.
Indeed, eResolution, a past provider, left the business because other  
providers were tilting the rules more and more towards complainants:
http://www.theregister.co.uk/2001/12/04/eresolution_quits_domain_arbitration/

“It is but an open secret that lawyers advising their clients in  
domain name cases have no scruples about quoting the figures and  
saying that the odds are better with a given provider.”
The emphasis in the future should be on accurate and verified WHOIS,  
to allow disputes to be handled in the court system, and to also  
reduce the amount of abuse that happens on “throwaway” domains  
registered with fake or anonymous WHOIS. If *both* parties are  
interested in ADR, they can both opt-in to use
arbitration providers, however it should not be forced upon domain  
registrants.
Real courts would not tolerate the bias evident in these kinds of  
proposals from pro-complainant UDRP providers. More and more we see  
the system abused, as a method of buying a lottery ticket in order to  
reverse hijack domain names from legitimate registrants. CAC simply  
proposes to make that reverse hijacking faster, cheaper, and with even  
less due process than exists today.”"”
We agree

ICANN should not sell justice to the lowest bidder.

ICANN needs to insure that the system is fair, and the cases decided  
on the facts not with an eye toward obtaining other business and more  
cases.



Michael H. Berkens
President
Worldwide Media, Inc.

http://www.MostWantedDomains.com

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