Comments to the Initial Report on the IGO-INGO Access to Curative Rights Protection Mechanisms Policy Development Process

["email@xxxxxxx" <email@xxxxxxx>]

I wish to comment on the IGO-INGO issue as it relates to the UDRP.

I have experience with the UDRP process as I am currently involves in 
one of the longest running domain disputes in the history of the 
Internet.  I registered DirectorsChoice.com in 2000.  In 2002 the first 
legal threat was made.  In 2014 a UDRP was filed and in 2015 a federal 
court case was filed under the Ant-Cybersquatting Protection Act seeking 
a judgment for Reverse Domain Name Hijacking.
There were a series of problems with the UDRP provider, the National 
Arbitration Forum.  One problem that occurred during the process was 
that the rules for forming a panel were ignored.  The complainant was 
also allowed to amend the complaint with a new set of specimens and new 
arguments.
The company filing the complaint had no registered trademark, hid 
communications about the domain that occurred over a 12 year period, and 
had no proof the domain was registered in bad faith some 14 years 
before.  The panel found excuses for all of these things.  For instance, 
since there was no proof of bad faith registration the panel found that 
"Respondent and Complainant are both based in the United States and as 
such Respondent was aware of Complainant’s use of its common law Marks 
at least 3 years prior to Respondent’s registration of the disputed 
domain name."  Trademark rights were "granted" based on a company name 
on an invoice and a single quote from one person in the 1990's.
The most shocking part was the allowed amendment to the complaint. 
During the first submission specimens were submitted that ran Google ads 
for unrelated products such as intellectual property services (it was an 
intellectual property law firm collecting the specimens).  The amendment 
had specimens of the same web page but the Google ads were different. 
Suddenly, most of the ads were travel-related and it was claimed the 
site was put for the purposes of infringement of the claimed common law 
trademark.
It is readily obvious to anyone familiar with the Google keyword system 
that the ads were probably displayed based on user preferences and had 
nothing to do with the domain dispute (see the Google user agreement 
indemnification clauses).  The attorney who made the submission, Matthew 
Swyers of The Trademark Company, writes articles about the Google 
keyword system and how it relates to trademark infringement.  The chair 
of the panel, Scott Austin, claims to be an expert in the Google keyword 
system as part of his law practice.  All these experts reviewed these 
specimens yet they could not figure out the ads had nothing to do with 
the domain name?  Mr. Austin apparently also holds an official position 
in INTA and INTA apparently promotes the services of the National 
Arbitration Forum at conferences and other events.
At this point the case is still in discovery.  I have asked the court to 
allow me add the Trademark Company as a defendant as it seems the Google 
cookies that were used when the specimens were collected are "not 
available."  My allegations against The Trademark Company are that they 
violated the Anti-Cybersquatter Protection Act by engaging in a pattern 
of filing out of scope UDRP's, that they used their expert knowledge of 
the Google keyword system to provide false evidence, and then destroyed 
the Google cookie files which would have allowed me to rebut the evidence.
In short, this dispute spanning more than a decade was very, very far 
outside the scope of the UDRP yet the panel made a finding anyway.  This 
gives the appearance that the chair of the panel pushed for this because 
dismissing the complaint would have affected his relationship with INTA 
and affected his practice.  Complainants to ICANN about NAF have gone 
unanswered and the ombudsman refuses to investigate in spite of numerous 
complaints from numerous sources over similar issues.  Whether any of 
these entities can be liable under the Anti-Cybersquatter Protection Act 
remains to be seen.
Given the failure to properly manage the UDRP the court challenge should 
remain in place.  As it is currently it could be argued that an IGO-INGO 
waives their right to immunity when they agree to the arbitration 
agreement.  That should be changed so any entity who files a UDRP 
explicitly waves their right to any immunity.  The respondent should 
have the matter reviewed in a legitimate legal forum rather than some 
kangaroo court run by NAF and INTA members.
Thank You

Russ Smith

UDRP decision -
http://www.adrforum.com/domaindecisions/1590433.htm

Court Case opinion -
http://business.cch.com/ipld/SmithDirectorsChoice.pdf

Court Case Docket -
https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?313475