Submissions in Favour of Limited UDRP Review [Jim Davies]
Comment and document [attached] submitted by ICANN staff on behalf of: Jim Davies IP & Domain Name Consultant Solicitor (England & Wales) ---------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------- From: Jim Davies [mailto:Jim.Davies@xxxxxxxxxxxxxxxxxx] Sent: Saturday, 23 July 2011 6:56 AM To: 'prelim-report-udrp@xxxxxxxxx<mailto:'prelim-report-udrp@xxxxxxxxx>' Subject: Submissions in Favour of Limited UDRP Review Dear Sirs I am not convinced that the UDRP has been quite the unqualified success that the Executive Summary of the staff report suggests. However it has been largely effective in providing a mechanism to deal with cybersquatting and I agree with the staff report's suggestion that the wording of the UDRP should not be reviewed. The issues that are identified below and in the attached paper that I think can be dealt with without changing the UDRP itself. I think that ICANN should make clear that the wording of the policy itself does not need review; and further that it will not be reviewed in the foreseeable future. My principal call is for ICANN to take ownership of the UDRP. ICANN should implement a contract with the UDRP providers. That contract should impose standards on the providers and, in turn, on their panellists. I attach a paper outlining my concerns. A predecessor of that paper has previously been published (and was also brought to ICANN's attention) at the time of CAC's proposed substantive change to the UDRP when it sought to bring in a shortened process. That incident, and others found in my submissions, highlight the problems that have been caused by the lack of a provider contract. ICANN needs to have the express power to deal with the problems and failings highlighted in this submission, so that a provider that falls short can be removed from the list of accredited providers quickly and decisively. ICANN should take a lead where panellists (or providers) seek to rewrite and extend the UDRP. ICANN (not providers) should issue guidance on questions that are causing controversy. An example would be the minority of panellists who believe that claims of post registration "bad faith" should suffice, notwithstanding the clear requirement for "bad faith" registration and "bad faith" use). In so doing, ICANN should stand firm on the reason behind the UDRP - that is to provide a solution to "cybersquatting"; rather than a forum for panellist created jurisprudence that "adapts" to commercial activity not contemplated at the implementation of the UDRP. Further, ICANN should implement require certain standards of procedural fairness on the providers. For example, a cab rank system of appointing panellists would avoid the sort of distorted picture of panellist appointments highlighted in the Muscovitch study of such appointments at NAF. Overall the UDRP has been a success. However, it requires proper administration by ICANN in terms of policing the providers and some of the more radical IP rights proponents amongst the panellists. ICANN needs to act to prevent any further "race to the bottom" caused by competition between the providers for Complainants' dollars. Thank you for the opportunity for making this submission. Yours Jim Davies Jim Davies IP & Domain Name Consultant Solicitor (England & Wales) www.ElevationLegal.com<http://www.ElevationLegal.com> Elevation Legal Elevation Partners Pty Ltd (ACN 121 050 904) Suite 1, Enterprise Centre 3 11 Brodie Hall Drive (enter from 9 De Laeter Way) Technology Park Bentley WA 6102 PO Box 1001 Bentley D.C. WA 6983 NOTICE This e-mail and any attachments are intended for the addressee(s) only and may be confidential. They may contain legally privileged or copyright material. You should not read, copy, use or disclose them without authorisation. If you are not the intended recipient please contact the sender as soon as possible by return e-mail and then please delete both messages. This notice should not be removed. The views expressed in this submission are my own and are not necessarily those of my employer or of any of my clients. Attachment:
udrp-in-crisis-23jul11-en.docx |