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UDRP Comments

To: ICANN Board
From: John M. Jacobs, Esq. <jjesq@hotmail.com>
Re: Comments on September 29, 1999 UDRP Draft

Thank you for the opportunity to comment on this Policy and for providing 
prompt access to the comments of others. By way of disclosure, I am writing 
as an individual but regularly represent the interests of a multinational 
corporation known by a coined service mark.

I believe that the UDRP fails to address the major shortcoming of the 
present NSI dispute resolution model, which is the incentive it creates to 
arbitrage domain names. When a trademark owner is able to convince a 
Provider that a registrant has acted in bad faith and without colorable 
claim of rights in a domain name, the owner will generally have incurred far 
more cost than the bad faith registrant due to the high burdens of proof in 
the mandatory administrative proceeding in sec. 4(b) and the allocation of 
fees in sec. 4(g). Therefore, a trademark owner has economic incentive to 
settle with a bad faith registrant for an amount less than the difference in 
the parties' predicted dispute costs.

I suggest that the UDRP provide that registrants found to have registered an 
identical or confusingly similar domain name, without colorable right and in 
bad faith be liable for all the trademark owner's costs, including Provider 
fees, out-of-pocket expenses and attorney's fees. This would remove 
potential bad faith registrants' incentive to arbitrage domain names without 
effecting the rights of innocent or good faith registrants.

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