RE: [gnso-udrp-dt] Action Items from Today's Call

["Taylor, David" <David.Taylor@xxxxxxxxxxxxxxxx>]

Hi Margie
 
I think that Philip has a point regarding the questionnaire getting 
comprehensive.  The question really is whether or not providers (or anyone 
else) can respond to it.  I would have thought that providers do have a lot of 
this information to hand, and if given enough time, thus the three weeks 
minimum I mentioned on the call, they may be able to provide some facts which 
need to be elicited from the cases.
 
In any event, thanks for picking up those questions post discussion and mods.
 
My only comment on the current questions concerns 1(k)  How many UDRP cases 
have been filed with you that involve cases asserting fair use of the domain 
name and of those cases where fair use asserted for what percentage of these 
was that assertion upheld?
 
I wonder why "fair use" - has being singled out (referred to at 4(c)(iii) of 
the UDRP), rather than say "rights and legitimate interests" under 4(c) as a 
whole?  Also, if we are asking about success under 4(c)(iii) then why are we 
not asking any corresponding question(s) in relation to 4(b) and bad faith?  I 
don't understand why this one particular issue of "fair use" has been singled 
out for a question, I don't think we discussed it so one of the original 
questions, so just raising it for discussion now.
 
Also it is a bit of an odd question to put in section 1 as the rest are mainly 
fact based and will involve answers that the providers will hopefully be able 
to pull off their systems.  However whether "fair use" was asserted is more 
difficult and may require more detailed analysis of decisions in order to come 
up with the numbers and percentages requested.  If we do want to ask more 
searching questions such as this (and I'm not sure it's a good idea, in section 
1 anyway) then it would make sense to include others, such as, for example "How 
many decisions have found that the respondent has no rights or legitimate 
interests, but has not registered and used the domain name in bad faith, and 
vice versa" (with the aim of assessing whether there is a need to make (ii) and 
(iii) alternative requirements, rather than cumulative) or "How many decisions 
have found that the domain name was registered, but not used in bad faith, and 
vice versa" (with the aim of assessing whether there is a need to make 
registration and use in bad faith alternative, rather than cumulative).  But 
I'm not sure that providers would easily be able to access this information and 
so maybe it would be better simply not to have any questions like this at all 
(thus also deleting the fair use question).  
 
Thus my view is that this question 1(k) is perhaps a question for a later stage 
and too complex for this questionnaire with the time available so I would 
suggest we delete it.
 
David

Dr. David Taylor
Partner


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________________________________

From: owner-gnso-udrp-dt@xxxxxxxxx [mailto:owner-gnso-udrp-dt@xxxxxxxxx] On 
Behalf Of Philip Sheppard
Sent: jeudi 14 avril 2011 16:47
To: 'UDRP DT'
Subject: RE: [gnso-udrp-dt] Action Items from Today's Call


Sorry I was unable to be with you after all on the call last week and apologies 
in advance for next. All options are no go for me due travel.
 
However on the survey, it is very - how can I say it? - comprehensive. 
As someone who is asked weekly to answer surveys, it is a bit demanding.
Demanding surveys get low reply rates.
 
Do we really need such delineation at this stage ?
Cant we group some of this Q1 options?
 
And the free text questions after that will result in a variety of quality of 
input.
I would advocate converting this into a form that is shorter, user friendly and 
option based.
For the Q 1 a form that does some of the maths  eg % would be good.
Maybe you discussed this - and we should all know this is not the final format. 
If so apologies.
 
Hope these comments help.
Philip
 


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