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Re: Comments on comments on my comments

  • To: comments-igo-ingo-crp-access-initial-20jan17@xxxxxxxxx
  • Subject: Re: Comments on comments on my comments
  • From: "email@xxxxxxx" <email@xxxxxxx>
  • Date: Thu, 2 Mar 2017 15:01:31 -0500

I am replying to the comments about a UDRP decision being a "prima facie" finding of something (not fully explained).

My understanding of a "prima facie" finding means something that appears true at first sight but can rebutted by further exploring the factual record. That would imply there is some sort of procedure or appeal to expand that factual record and come to new decision. At least under US law that is not possible. There is no appeal or further review of the UDRP decision. You can take a court action under the Anti-Cybersquatter Protection Act (ACPA) to show the use of the domain is "not unlawful" under the ACPA and you can take action to show the complainant made materially false statements that caused a transfer order. However, there is no review of whether what the arbitration panel was correct and there is no weighing the facts in relation to the UDRP. Therefore, a UDRP decision is a final decision and the "at first sight" doesn't mean anything because you can't get another look.

This is the biggest underlying issue with the whole process and why people don't trust the panels. The number of conflicting decisions grows instead of shrinks and anyone can make all kinds of screwball claims and justify it by referencing some UDRP decision. WIPO put out that list of issues some years back that helped a little but that is not a substitute for legitimate appeal process. The arbitrators go in and say what they want, collect their fees, and they do not to worry about what anyone thinks because they can't be challenged.

It is interesting that in the court case I filed the Defendant asserted to the court that UDRP panel found use of the domain was "unlawful."

Thank You

Russ Smith

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