Comments on: Domain Arbitration is Like The Energizer Bunny: Keep Filing and Filing and…

By: Karen Bernstein

Karen Bernstein — Fri, 24 Jul 2009 16:57:25 +0000

Just remember that the NAF and WIPO are in the business of making money. They have no motivation to change their policy unless groups like the ICA and other domain industry professionals complain. The NAF and WIPO could remedy this problem by simply asking in the cover form the complainant files whether there are any related UDRP actions (current or former) against the respondent. This would not only tell them whether a complaint has been filed against the same respondent but also would allow for of parallel complaints between the same parties to be consolidated, which would make administration of the procedure more streamlined. The major problem here is that there is no procedure for the respondent to move to dismiss based on res judicata. Respondents cannot take aggressive tactics like they can in federal court.

As I agree that the UDRP domain arbitration process is better than nothing, it is up to the domain community, the one paying the fees to fight these domain arbitrations, to be more vocal and add pressure to change the rules.

By: UDRPtalk

UDRPtalk — Fri, 24 Jul 2009 03:51:33 +0000

@Andrew, I’m glad we are on the same page. The decision to “quash” should only be done by a skilled panelist because the arbitration companies are just “clerks” and aren’t skilled enough to spot all the instances where a case should be “quashed”.

For example, the complainant could “fool” the clerks by simply moving paragraphs/exhibits around or even rewording/rephrasing portions resulting in nothing new being introduced and essentially the same case being filed again.

So you see, the skills needed are beyond “clerical” to detect all the opportunities for “quashing” that are beneficial to the respondent.

By: Andrew Allemann

Andrew Allemann — Fri, 24 Jul 2009 00:21:04 +0000

@ UDRPtalk – I think that would be a reasonable approach. Perhaps the respondent is notified that a case has been filed, but that they should hold off on submitting a reply until the panel submits a decision with regards to if it should go forward. If the panel then decides it should go forward, the clock will start for the respondent. This would also save the panel the time of reviewing the respondents submission, which I believe they end up doing even if they decide not to render a decision on the case.

By: UDRPtalk

UDRPtalk — Fri, 24 Jul 2009 00:00:49 +0000

@Andrew, so are you proposing that the UDRP rules be changed where a panelist is assigned to the case immediately so that it can be potentially “quashed” so that the domain owner doesn’t have to incur any unnecessary time and legal expense?

By: Andrew Allemann

Andrew Allemann — Thu, 23 Jul 2009 21:00:33 +0000

I would think the arbitration company should check.

By: UDRPtalk

UDRPtalk — Thu, 23 Jul 2009 20:37:49 +0000

Shouldn’t the panelist be required to check whenever a response isn’t submitted?

The MothersMilk.com panelist, Carolyn Marks Johnson, didn’t check. Incidentally, she has been sued for judicial misconduct.

By: David J Castello

David J Castello — Thu, 23 Jul 2009 17:41:15 +0000

“If the complainant does not disclose this information, the Panel may not be aware that the case is refiled.”

Not quite sure what to make about this, Andrew. I wouldn’t expect the Complainant to disclose they lost. However, if I beat someone in arbitration and they’re dopey enough to refile the first thing I would do is point to the original decision.