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  • Seriously, Wooot the Hell?

    1. BY - Apr 23, 2010
    2. Policy & Law
    3. 18 Comments

    Wooot.com case needs proofreading; sheds light on UDRP panelist practices.

    Yesterday Elliot Silver wrote a post about the UDRP decision for Wooot.com. The panelist found in the complainant’s favor, but ordered the domain name canceled rather than transferred.

    I have to admit, even as someone who reads a lot of UDRPs, until about a month ago I assumed that canceled meant transfer. Why? Because it’s so stupid to think of a domain being deleted rather than transferred to the winner. If it’s deleted, someone else will just pick it up.

    But as it turns out, they are two different things. It’s right there in the UDRP rules. There’s a long running joke about how some inexperienced counsel will ask for a remedy of a domain being “canceled” instead of transferred, not realizing what will happen if they win.

    But in the case of Wooot.com, it seems that the panelist just opted for the language “canceled”. I’m inclined to think this may be because he (or someone connected to National Arbitration Forum) was cutting and pasting bits and pieces from other decisions. Why? Let’s break down a couple things from the Wooot.com decision.

    First, under “Parties Contentions”, the decision starts out stating:

    Complainant held a trademark registration for AOL and Respondent registered the domain name aol.com.

    Huh? AOL? The complainant is Woot.com. As it turns out, iAOL.com is a completely different UDRP case from 2002 from a different panelist.

    Then under “Additional Submissions” it states:

    The submission of Respondents is that the Complainant’s arguments in its letter written by its representative P. Weston Musselman Jr. makes does not substantiate its Claims. And the submission of the complainant is that

    It literally stops at “that”. I have no idea if this guy Musselman was actually involved with this case or if this is from another case.

    Is this a matter of cutting-and-pasting from other decisions?

    George Kirikos started digging into it and found something interesting. Take a look at another decision by the same panelist, which states:

    “Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED”.

    That’s a contradictory statement. If they established all elements it would be granted.

    Kirikos found 41 instances of various panelists writing that same contradictory statement in their decisions. (See comments here for exact case numbers.) So they’re either cutting and pasting or not paying attention. Either is a bit disconcerting.

18 Comments
  • ICANN needs to mandate that UDRP providers output decisions in a standard XML format, so that academic researchers can dig deeper. There are about 2000 matches for “UDRP” in Google Scholar, but only a handful look at text of decisions, etc.

  • The tide is turning.

    Time to bury the NAF in a lawsuit!

    Dirty, money-grubbers!

    Some great reporting here Andrew/George. Thanks for doing all of us a favor and shedding light on this.

    This is a big DAMN deal!

  • John Berryhill says:

    April 23, 2010 at 1:00 pm

    Ah… the good old days of UDRP-canceled domain names:

    http://web.archive.org/web/20020601075122/http://www.nokiagirls.com/index.html

    http://web.archive.org/web/20020602022433/www.jet-tour.com/

    http://web.archive.org/web/20020604032141/www.keywestseafoodmarket.com/

    http://web.archive.org/web/20020605015604/www.lladro-retired.com/

    http://web.archive.org/web/20020530234311/www.planetrxx.com/

    I spent two years collecting those things, and cancellations died out for quite a while thereafter.

    They have made a big comeback, and it is simply mind-boggling.

  • Andrew, it is just delightful and an amazing feat that you are able to detect this stuff and publicize it.

  • And of course George never ceases to amaze with his research skills and pursuit of the truth.

  • Perhaps we need to make the use of Odesk.com monitoring tools mandatory for UDRP panelists, which takes screenshots while they work? This would make it transparent which panelists are doing real work, writing original decisions after thoroughly considering both sides of the case, and which panelists simply fill in the blanks on prewritten templates and are done in 10 minutes, earning $5,000+ per hour as they churn out nearly identical decisions.

    • @ George – to be fair, there are a lot of hard working panelists who do spend significant time and mental resources on each case. Perhaps the problem is that pay is too low, which incentivizes people to not check their work or spend the requisite time on a case.

  • I agree with you, Andrew. That’s why I said there are two types of panelists. It’s high time to weed out the bad ones.

    Even worse than some of these cut/paste jobs are the ones where pro-complainant panelists re-interpret UDRP terms to expand things beyond its original intent, e.g. the “and vs or” issue for bad faith registration AND us, the ones who equate “evidence” and “proof”, when they are very different, the ones who don’t even consider reverse domain name hijacking, even though it’s mandatory to do so, even in default cases, and so on. The ones who on one day are a panelist, creating “precedents”, and the following week are representing complainants who cite those same decisions as precedent to help their cases, are amongst the worst.

  • Oops, I meant “registration AND use” (not “us).

  • Just as a quick followup, what I hope happens is that we see the *good* panelists rise up against their shoddy peers. I’m sure the good ones don’t want to associate with the bad ones.

    If the system is working properly, the good panelists should rise to the top, and crowd out the bad ones. However, the opposite can also occur, that the bad ones get more cases because the good ones all leave out of disgust. Given what happened with NAF in credit card disputes (see their Wikipedia article under “National Arbitration Forum”), that pro-complainant bias by the provider (they are a business, after all, and might be encouraging forum-shopping through their behaviour, to attract more complainants away from WIPO and CAC) might be alarming to some of the good panelists, who might not get a fair share of the cases.

    In the early days of the UDRP discussions (before a final policy was adopted), there was a proposal that the *registrar* pick the provider, rather than the complainant. This might provide less forum shopping than we have today (even fairer would be if the registrant picked the provider). Recall the Montreal Canada UDRP provider eResolution went out of business, as discussed at UDRPInfo.com (Michael Geist’s early study of UDRP bias) because not enough complainants were picking them (because they were deciding against complainants too often compared to NAF and WIPO).

  • If they cannot get the decision right without typo’s and errors, imagine how bad the research to make the decision was!

    This is not a cookie cutter industry.

  • I hope to see a freeze in UDRP proceedings and filings until this can be sorted out.

  • The excellent points of this article on proofreading are, ironically, undercut by the glaring spelling and grammatical errors the author makes (needed more proofreading?). See the statements “George Kirikos starting digging into it and found….” as well as “I have no idea if this guy Musselman was actually is involved with this case….” Thankfully, no domains were harmed in the drafting of this piece.

    Have there been similar errors made in WIPO decisions or is the NAF the sole culprit here?

  • The good folks at NAF caught with the old copy/paste again! There was a recent UDRP regarding AdventureRV.com where the complainant not only lost, but was found to have engaged in Reverse Domain Name Hijacking.

    http://domains.adrforum.com/domains/decisions/1300901.htm

    However, in NAF’s index of cases, it’s listed as “Transferred”! Here’s the annotated screenshot, before they go and change it:

    http://www.loffs.com/images/adventurerv.gif

  • The story keeps getting interesting. NAF has been caught revising the past:

    http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/

    instead of answering to the public. ICANN has been silent on the issue.

  • As a followup to this older story, it looks like Woot finally obtained the wooot.com domain, via a new UDRP filing against the new owner:

    http://domains.adrforum.com/domains/decisions/1454856.htm

  • Thanks for noticing the new decision, George. The Panelist here, Tyrus R. Atkinson, Jr., has a solid reputation.

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