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R Tindal comments

  • To: ppdrp-15feb10@xxxxxxxxx
  • Subject: R Tindal comments
  • From: Richard Tindal <richardtindal@xxxxxx>
  • Date: Thu, 01 Apr 2010 15:18:01 +1100

I support the PDDRP and believe it is very close to completion.  The concept 
behind it is sound, and it contains sensible burden of proof standards.    
Legitimate PDDRP actions should be rare as infringing registries would be 
placing their entire business at risk.    Given the cost of acquiring and 
operating a registry,  and the high degree of transparency in registry 
operations, I believe it will be rare for a registry to engage in infringing 
activity.  That said, such infringement is possible and the PDDRP provides 
brand holders with strong protections should it occur.

My concern with the PDDRP, which can be fixed with small adjustments, is that 
it will be abused by over-zealous brand holders, or parties seeking to 
unreasonably force financial settlement from registries.  Currently, it 
incentivizes parties to submit claims which they know are unlikely to succeed.  

Specifically, I recommend the following safeguards to inhibit claimant abuse:

a.  Claimants Should Fund all Up-Front Costs.   The current requirement for 
registries to fund  50% of up-front costs will motivate Claims whose only goal 
is some form of settlement from registries.   Placing the up-front  burden on 
the claimant will make PDDRP consistent with other RPMs such as URS and UDRP. 

b. Claimant Trademark Review.    There needs to be a more substantive review of 
a claimant's rights to a mark.   Currently this language is very broad, and 
hence it sets a low threshold for claim validity.

c.  Panel Composition.     A PDDRP determination will be the most complex and 
important judgment of any RPM.  The issues will be more complex and the 
potential remedies most profound. Accordingly, it seems only sensible that the 
panel comprise of three persons rather than the proposed single panelist.   
Individuals can make mistakes, and can be corrupted.  The consequences of this 
in a PDDRP are profound. A panel of three is less vulnerable to such outcomes.  

d.  Challenge.    Registries should be able to challenge panel decisions/ 
remedies under the dispute resolution mechanisms in the registry--ICANN 
contract.  This places the ultimate burden of contract enforcement where it 
should reside - between the parties to the contract.

Thank you for consideration of these views.

Richard Tindal  

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