comments on UDRP -- corrected copy

[Jonathan Weinberg <weinberg@mail.msen.com>]

	I fully support, and incorporate by reference, the comments of Professor
Michael Froomkin on the Uniform Dispute Resolution Policy.  For the sake of
emphasis, I will repeat here in summary form my most important concerns
about the proposed policy.

	1. Process.  This policy is a redraft, by ICANN staff, of a document that
first came to the attention of the Internet community at the Santiago ICANN
meeting.  This brief two-week comment period has been the *only* time that
the policy, or any direct predecessor, has been subject to scrutiny by a
range of interested and internationally representative actors.  There is
simply no reason to rush the policy to quick enactment without allowing the
international community a reasonable time to examine it and its potential
consequences.

	2. Tarnishment.  Under section 4(c)(iii) of the proposed policy, a person
making a legitimate noncommercial or fair use of a domain name will
nonetheless be considered to have no legitimate rights in the name, if the
Panel finds that he intends or intended to "tarnish" the mark.  Thus, the
owner of microsoft-sucks.com (for example) would be considered to have no
legitimate rights in that domain name, and would be vulnerable to being
stripped of the domain name in the ADR process.  This is surely a wrong
result.  It would grant trademark holders grounds for relief that go far
beyond anything available to them under conventional trademark law, and
would allow them to oust domain name holders in cases that don't remotely
correspond to the conventional understanding of cybersquatting.  It would
allow the ADR process to be used as an instrument of suppressing free speech.

	3. Parity of Appeal.  The rule that a domain name holder, in order to
block a the transfer of his domain name, must file a lawsuit in the
jurisdiction of the *registrar* within *ten business days* makes the domain
name holder's protection more apparent than real.  It is essential to
parity of appeal that domain name holders have an effective route to
judicial resolution of their claims.  At least for the time being, though,
NSI retains an overwhelming share of gTLD registrations.  As a result, the
rule yields protection for the overwhelming mass of domain name holders,
located across the globe, only if they are in a position to file, and do
file, an immediate lawsuit in the Eastern District of Virginia.  That is
not meaningful protection.  A far better rule would allow domain name
holders the option of blocking transfer by filing a lawsuit in their home
jurisdictions.

	4. Reverse Domain Name Hijacking.  Nothing in the policy meaningfully
discourages trademark owners from engaging in reverse domain name
hijacking, or otherwise harassing domain name holders by bringing meritless
claims.

Jonathan Weinberg
co-chair, Working Group C
Professor of Law, Wayne State University
weinberg@msen.com