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Submissions in Favour of Limited UDRP Review [Jim Davies]

  • To: "prelim-report-udrp@xxxxxxxxx" <prelim-report-udrp@xxxxxxxxx>
  • Subject: Submissions in Favour of Limited UDRP Review [Jim Davies]
  • From: Marc Salvatierra <marc.salvatierra@xxxxxxxxx>
  • Date: Fri, 29 Jul 2011 10:50:09 -0700

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.


Jim Davies
Jim Davies
IP & Domain Name Consultant
Solicitor (England & Wales)
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

This e-mail and any attachments are intended for the addressee(s) only and may 
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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
Description: udrp-in-crisis-23jul11-en.docx

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