when a respondent
defaulted. Moreover, he said, each provider should have quality control
mechanisms in place
— as does
eResolution — to review problems with panelists. And the entire process should
be more open, Geist
said.
NAF Managing Dir.
Edward Anderson questioned Geist’s findings. “We’re not pleased by the tone of
the re-
port,” he said.
Once one controls for default cases, it’s much harder to make the argument that
the win-loss results
are
disproportionate, he said. Geist can make that argument, Anderson said, “but we
disagree.” Once default
cases are out of
the picture, he said, NAF statistics show that claimants in single-panelists
cases win 3 out of 5
times, with a
lower success rate in disputes where respondents ante up for 3-member panels.
Anyone who argues
that a win rate
of 3 out of 5 is unfair, he said, must look at each case on its merits.
Nevertheless, he said, “we’re
going to look at
every detail” to see whether improvements are possible.
Most people
assume that arbitrators are selected randomly or sequentially, as trial judges
are in most courts,
Davis told us.
Geist’s study said that’s not the case, and that the results have biased the
outcomes, “for better or
worse, depending
on your point of view.” Three-judge panels often craft more reasoned decisions,
he said, be-
cause they take
time to think through the issues, hold “spirited discussions” and combine years
of intellectual
property law
experience.
Davis said he
wished Geist had not “picked me out because it will, I fear, make it more
difficult for me to ob-
jectively rule on
cases where I am appointed by one of the parties, since it identifies me with
the respondent side
of things.” As a
lawyer in a small firm, he said, he has “almost always” represented “the little
guy.” However, he
said, he doesn’t
represent only the domain-name owners point of view and has “strongly supported
trademark
owners in the few
cases I have been on where they were correct.” Too often, though, he said,
trademark holders
appear to believe
that “they have some God-given right to all domains that might in any way be
construed to refer
to them. That is
simply not the law.”
Mueller never has
been selected as an individual judge in an UDRP case, he told us, and as long as
the current
system is in
place, “I do not ever expect to be... This is a somewhat delicate topic.” To
WIPO’s credit, he said, it
added him to its
roster of arbitrators to provide “some gesture of greater fairness.” That
effort, however, doesn’t
extend to
actually using him as a solo judge, he said. Mueller, who earlier this year
released a study critical of the
UDRP, said
Geist’s proposals deserved serious consideration. It may be that “we will have
to go with 3-person
panels, even if
raises the cost,” he said. However, he said, raising the bar might eliminate
some frivolous do-
main-name
challenges.
ICANN, which is
conducting its own review of the UDRP, is “gratified” that Geist has contributed
his study,
an ICANN
spokeswoman said. However, she said, UDRP respondents can choose to accept
either a single arbitra-
tor paid for by
the complainant or a 3-member panel paid for by both parties. The overwhelming
majority of sin-
gle-member panel
cases are ones where the respondent doesn’t show up, she said. “It’s not
surprising that a large
majority of these
cases result in a finding that the [domain-name] registration was abusive.”
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