The UDRP was implement to provied an “administrative resolution for only a small, special class of disputes. Except in cases involving “abusive registrations” made with bad-faith intent to profit commercially from others’ trademarks (e.g., cybersquatting and cyberpiracy), the adopted policy leaves the resolution of disputes to the courts…” Taken from the Second [ICANN] Staff Report – found here:

http://www.icann.org/en/udrp/udrp-second-staff-report-24oct99.htm

That is what it is for. Likewise exceptional circumstances do not cover what will become the standard filing practice under CAC.

And the NAF Supplemental Filing Fee should never have been allowed – it is the start of the slippery slope.

Domain registrants are just people and businesses. As such, they are entitled to their rights being protected. Complainants are too – but if their dispute does not fit into the intended limits of the UDRP, then they have the right to go to court – just as everyone does for any other sort of dispute. Likewise they should not be afforded the advantage of a speeded up, dumbed down UDRP, unless the entire internet community agrees that is the correct way forward.

I can assure you that the summary DRS in the UK did result in more complaints being filed – and often withdrawn when met with a substantive response. I am certain that it will happen in the UDRP.

I am sorry you cannot see all of that, but there we go.

However, I don’t see that any legitimate registrants could possibly be harmed by this. *Legitimate* registrants are those who stay far from others’ IP rights and who update their Whois information. Seems kind of easy to do.

Also, I disagree with your view on what the UDRP is for. You seem to be quoting David Sorkin there, and if you want to talk about someone with a profit motive to make bad decisions, he’s the poster child for that kind of thing. Don’t get sucked into his kool aid bin, as it isn’t based on legitimate theory, it is based on getting a steady flow of $750 checks from Ari Goldberger to supplement his professorial income.

I don’t see my interpretation of Paragraph 19 as the ends justifying the means. Paragraph 19 provides an example, but it is not a limiting example — but merely that — an *example*.

Here’s the problem, I think. You regard domain owners as some kind of exalted class. Fair enough. Anything that could possibly mean that they might be burdened by, I dunno, responding to a complaint, seems overly burdensome. I can live with that.

But get a grip, Jim. It isn’t going to make it that there is a flood of UDRP complaints. Hell, you can file a federal court action against any .com in US Court, and all you need is a $300 filing fee.

Again, I think that the entire alarmist camp here needs to untwist their panties. The world didn’t grind to a halt when NAF implemented its “Supplemental filing fee” rule, and the sky isn’t going to fall here.

And watch your manners with assigning my intentions. You started reasonably enough, but you’re getting a little Berryhill with that. I don’t give a sweet turd if CAC implements this plan effectively or not. I prefer to bring complaints with WIPO, and frankly, I prefer to defend them before WIPO. I’ve found CAC to be problematic for other reasons, but I haven’t found them to be ethics based.

The fact is, you’re trying to find limitations in the UDRP to fit your view, and the textual limitations just are not there. You’d be better off being more objective about it. Well, maybe not, since the domainer community prefers attorneys who flip their wig and scream “injustice” any time their definition of “Generic” gets put down, but that’s beside the point… or is it? Do your marketing, it will serve you well, but nobody’s due process rights or property rights are threatened here — except for maybe a few of the larger typosquatter companies. If those companies pay your mortgage, then rail away, but it smells of desperation.

We obvioulsy disagree fundamentally on the importance of protecting legitimate registrants. I do not think that any lobby group – domainers, IP rights lobby, UDRP providers or whoever – is more important than them.

Remember also that the UDRP is meant only for the most blatant cybersquatting cases that you refer to. It is lightening quick and cheap by any judicial measure and provides a more than adequate quick and cheap system to protect rights holders in such cases. Any case that involves a serious argument ought to be rejected and the parties left with court as the appropriate forum.

Para 19 requires the intial fee to be paid upfront. It does not allow for a routine second part of the intial fee. You seek to shoehorn this into subpara (d) as an exceptional circumstance. The example given in the rule is for an in-person hearing (which as far as I know has never happened) – so to say that this “new procedure” (your words) equates to an exceptional circumstance is obvious nonsense.

As you say, this is a “new procedure” and we differ on our view whether the outcome is desirable. That is fine. Your attempts to justify the means is embarassing. Be honest and say you think the ends justify the means, even when the means plainly breach the requirements of due process.

It does not make it more difficult to raise a legitimate defence, but it does (a) make it cheaper to make an illigitimate claim (or use the claim to UDRP “taste”) and (b) make it considerably more likely that an unanswered claim might prevail where previously it would have failed, when given proper scrutiny.

Failing to amend Whois information, no I have not represented a client for whom that was an issue. Nor have I represented someone who didn’t grasp what a UDRP meant until it was too late. Well, once I did the latter – and the other side graciously gave us an extension.

I do not hold much sympathy for those who are “swept away with the flood.” As you identified, those will be two classes of Respondents on the down side of this — those who fail to keep accurate Whois information (you break the rules at your peril) and those who fail to see the importance of a complaint filed against them until it is too late (at some point, natural selection should be respected, no?).

Therefore, my answer to your question is yes. I would sacrifice the one “legitimate” non-responder for the 10 cases that are more properly resolved in a cheaper and quicker method.

As far as your interpretation of the rules goes — I just don’t see the rules prohibiting this. You say “it is all in there,” but the text of the UDRP does not support your interpretation.

Para 15 provides that the decisions may be in a length provided for in the provider’s supplemental rules.

Para 19 governs fees, and provides that “The Complainant shall pay to the Provider an initial fixed fee, in accordance with the Provider’s Supplemental Rules, within the time and in the amount required.” But, it also provides that the provider can request additional fees in “exceptional circumstances.”

Naturally, nobody has defined “exceptional circumstances,” but I don’t see this interpretation of the rules as being inconsistent with their plain language.

I’m all for due process, but I think that this CAC supplemental rule change is A) entirely consistent with the framework given to them by the UDRP, and B) a good idea for all except a couple dozen of the most egregious cybersquatters — and frankly, even those could benefit from it if they had good, intelligent, and creative minded counsel who could use this new procedure not only in a way that it wouldn’t harm them – but potentially to their advantage.

I am guessing you have not handled many domain name cases for people being challenged for valuable generics. And I suppose your (non corporate) clients never go on holiday or fail to amend their WHOIS contact details or don’t grasp the importance of a UDRP/DRS until it is too late?

Yuor point about whether or not a fast track UDRP is a good thing or not is one you could make in a debate about this sort of thing, if we had the chance to decide this by following due process. I would counter it by saying that the UDRP is already a very fast track system by normal standards. For every ten “clear cut” cases, would you sacrifice the one legitimate non-responder who gets swept away with the flood.

But really it does not matter what anyone thinks, since the decision has been made by CAC (for commercial, not jurisprudential reasons), with collusion from ICANN.

As for the questions you ask @ John why it is not allowed under the rules, it is all in there in the UDRP Rules. Take a look and see what it says about the scope of supplemental rules, fees, reasoned decisions and the process for changing the policy.

BTW, it is not the scale of the fee that is the relevant question, but rather where in the rules does it allow a split intial fee? A single initial fee is required before the complaint can be handled by the provider and sent to the registrant – split initial fees are not allowed under the UDRP rules.

Ultimately it all goes the need for a unified system controlled by ICANN and the internet community as a whole – U is for Uniform.

What a fine example you set… when you are losing an argument, you cry about how the other guy argues – even when your own playbook has the same plays therein.

I think the conversation was pretty reasonable, and then you started talking about cobras or some other zany foolishness.

And again, I ask… where in the UDRP does it say that CAC can’t a) charge less, and b) provide shorter opinions? That’s what this is all about, that is where this all started. The shrill whining that this was an “outrage,” that CAC had somehow pulled some huge stunt.

If CAC is willing to handle cases on these terms, I’m just not able to find what part of the UDRP this conflicts with. And, I’d love to hear more than simply whining about it.

I have no idea why you must personalize everything, but it is not news. I do not agree with everything WIPO does, but there do seem to be people and organizations who can manage to disagree and discuss subjects without “dipshit”, “ludicrous” and “off your medication”. Sometimes such people actually manage to get together and hold a civilized conversation:

http://www.wipo.int/amc/en/events/workshops/2009/10yrs-udrp/program/index.html

“And I am aware that CAC, NAC, and ADNRC (or whatever it is called) are all private entities that operate for profit. What’s your point?”

The point was in response to your statement that WIPO’s criticism of CAC proposed supplemental rules was driven by some sort of “market share” consideration which, given the published WIPO budget and the actual numbers discussed above, is absurd.