[gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers
Cyntia King
cking at modernip.com
Fri Apr 27 22:14:47 UTC 2018
Hi Michael & Georges,
Thank you for taking the time to consider this question.
My comments below:
Please find a revised question regarding examiners attached:
In selecting examiners, do you have policies in place that are aimed
at developing a roster which includes a balance of lawyers who focus
on trademark enforcement and those who represent respondents, and
would you say these policies have been effective in generating a
balance of examiners who represent both sides?
In my opinion this question is a problem & should not be included in the
survey.
The underlying intent of this question - balance of lawyers representing TM
owners & Respondents - (1) seems to assume a non-existent guideline, (2) is
unknowable & (3) is inappropriate.
1. This is not a policy in the provider contract, so URS Providers
should not be accountable for policies/effectiveness.
This is a policy issue - as the guideline does not exist, should we create
it?
2. As not all Examiners are practicing attorneys (some are academics,
judges, policy experts or simply non-practicing), do we intend to set hiring
levels for additional classes of Examiners?
3. Whether a lawyer is as "enforcement" or "respondent" is virtually
unknowable:
a. Providers will not know (and should not make assumptions about) the
client makeup of their Examiners.
b. As many have observed, Examiners may not be free to characterize the
nature of their client's work; and looking at URS cases filed is not a good
way to know the extent of a lawyers work profile.
c. I have clients who are both TM-holders & domainers; certainly this
can apply to attorneys, as well.
d. Further, there may be little/no distinction between TM enforcement
& respondents. (E.g. the legal battle between Microsoft & Apple over the
term "app store" is a good example of how both sides can be
complainant/respondent even on the same issue. Notably both companies had
domains associated w/ "app store" as did Salesforce.)
4. This question is inappropriate & presupposes the dubious 'value' of
"generating a balance of examiners who represent both sides."
a. It is a fallacy that an attorney who happens to have clients in
either camp means they cannot be impartial. We expect civil/criminal judges
(the vast majority of whom were attorneys before being enrobed) to be
impartial.
b. The idea of "balance" is fatally flawed:
i. Do we really want to inject
this kind of partisanship into URS/UDRP decision-making? It's reasonable
to believe that this kind of policy will lead to 'Examiner-shopping' by both
claimants & respondents. This will not bring the "enforcement" &
"respondent" communities closer together, rather this is sure to create new
divisions.
ii. Using to the reasoning
behind the questions, any partisanship in the writing of decisions would
lead to even less certainty of outcomes than currently exists, as panelist
decisions swing according to their designated camp.
iii. What is balance? Is it
assumed that the goal is 50/50? What if the total pool of attorneys
qualified to fill the role of Examiner are 70% "enforcement" & 30%
"respondent"? Do we then impose a policy based on the proportionality of
the applicant pool?
iv. If it's determined that
"balance" is desirable and we can define what that means, this could be a
logistical challenge for Providers to achieve. How do you recruit Examiners
that meet this criteria? How long would it take to actually meet such a
goal? What is the increased cost to turn away qualified applicants in order
to fill the quota of "enforcement" or "respondent" Examiners?
v. How will other obligations
(like requirements to conduct proceedings in local languages) affect this
"balance"? And how burdensome will it be for Providers to try to extend
this criteria across other qualifications?
In conclusion, this question is fraught w/ potential for supposition,
misunderstanding & inaccuracy, and has dubious value. The criteria for
Panelists is that they have to be impartial and declare they do not have a
conflict. Even if "balance" were desirable, it is a near-impossibility to
create this mythical symmetry of interests.
Should the working group decide this is a policy we may wish to pursue, then
we would need a much larger discussion on the issue.
Cyntia King
E: cking at modernip
O: +1 81-ModernIP
C: +1 818.209.6088
From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> On Behalf Of
Nahitchevansky, Georges
Sent: Thursday, April 26, 2018 6:52 AM
To: Michael Karanicolas <mkaranicolas at gmail.com>; McAuley, David via
gnso-rpm-wg <gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS
Providers
My concern with compound questions like this is that they have underlying
assumptions that we are not even sure exist (for example that there is a
possible imbalance) which make them loaded questions. Moreover, as they are
bulky they will likely not generate much relevant information. It seems to
me that such an inquiry should be more neutral, focused on what the URS
rules specifically require of providers in appointing panelists and inquire
as to whether those rules are being followed.
From: mkaranicolas at gmail.com <mailto:mkaranicolas at gmail.com>
Sent: April 25, 2018 3:58 PM
To: gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] Redline Document: Proposed Questions to URS
Providers
Hi all,
Please find a revised question regarding examiners attached:
In selecting examiners, do you have policies in place that are aimed
at developing a roster which includes a balance of lawyers who focus
on trademark enforcement and those who represent respondents, and
would you say these policies have been effective in generating a
balance of examiners who represent both sides?
Thanks,
Michael Karanicolas
On Wed, Apr 25, 2018 at 1:44 PM, George Kirikos <icann at leap.com
<mailto:icann at leap.com> > wrote:
> Hi folks,
>
> During today's call, I was asked to propose new wording for some of
> the questions. Using the page numbering of the April 24th redline
> version as the starting point:
>
> 1. page 6, Q11:
>
> Current Version: "Do you believe the deadline for filing Responses is
> long enough? Please provide your rationale. If not, what time period
> would you support, keeping in mind that the URS is supposed to operate
> with rapidity?"
>
> Proposed Language: "Have you received any feedback from respondents
> that the time period to respond to a URS complaint is too low?
>
> [as an aside, conceivably, if all we're looking for is facts/data from
> the provider, rather than their opinion on policy changes, part of
> this might already be captured implicitly through Q3 on page 5;
> although, some respondents might have suffered through a short
> deadline, without asking for an extension]
>
> 2. Page 9, Q12(c):
>
> Current Version: "What is the procedure for assigning examiners? (i.e.
> how large is the pool of examiners, is it randomly assigned; some
> studies suggest a large number of cases are handled by a relatively
> small number of potential examiners)"
>
> Proposed Language:
> "12(c)(i) How large is the pool of URS examiners?
> 12(c)(ii) Are the examiners randomly assigned, rotated, or assigned
> using some other procedure (please specify)?"
>
> [aside: 12(c)(ii) seems to have already been responded to partially,
> based on the earlier wording of the question]
>
> 3. Page 13, Q10:
>
> Current Version: "Does the Provider have clerks or other staff that
> 'ghost-write' decisions for Examiners, before the Examiner has made a
> Determination independently, that the Examiner can simply sign their
> name to if they agree with it?"
>
> Proposed Language: [trying to be as diplomatic as I can -- my company
> does own Diplomacy.com! :-) ]
> "To what extent does the Provider supply Examiners with information,
> analysis or research concerning a Complaint or Response that is not to
> be found within the Complaint or Response itself? Does the Provider
> provide drafts or exemplars to the Examiners?"
>
> [aside: the "drafts" and "exemplars" language came from Rebecca's
> suggestion in the WebEx chat today; I hope I used it appropriately,
> although I'm welcome to friendly amendments; you'll recall that the
> "ghost-writing" term came from Paul Keating's comment to the article
> at:
>
> http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/
>
> "In the case of NAF they are (with reason) suspected of having inside
> clerks ghost-write opinions for delivery to the panelists." (excerpt;
> full quote has been posted before on this list)
>
> As I noted in the Webex chatroom and orally today, there had been
> instances in the past where the same gibberish/nonsense appeared
> verbatim across multiple decisions (in the UDRP) from different
> panelists
>
>
http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_into_udr
p_decisions/
>
> That article had a comment from Brett Lewis that stated (I'll quote it
> in it's entirety, to not take things out of context):
>
> "NAF decisions are drafted by in-house staffers who present the drafts
> to Panelists. If the Panelists agree with the staffer's decision,
> they can simply adopt the decision as their own. If the Panelists
> disagree, the Panelists have to draft a new decision. There is
> certainly an incentive to go along with the staff draft, but let's
> give panelists a little more credit. Most panelists that is.
>
> Staffers undoubtedly cut and paste, as all lawyers do - especially
> when working for so little money. The real issue is whether the
> cutting and pasting is a sign of something more sinister - bias.
> Justice by factory because the trademark holder is always right.
>
> It seems that a number of the cut and paste jobs here actually went in
> favor of the Respondents. I'd need to see more before I could say
> this is bias and not just sloppiness. Also, what was being cut and
> pasted makes a big difference. The UDRP system is far from perfect,
> and certain panelists are doing more of a hatchet job than they should
> be, but when they are getting paid a nominal amount to review papers
> and draft a decision, some degree of recycling is likely to happen.
> Still, it wouldn't kill NAF to review the decisions before they're
> published. "
>
> Later on, in response to my question whether WIPO does the same, he
> wrote (with the title of "Sausage Factory"):
>
> "I don't believe that WIPO does it.
>
> I'm not sure exactly how NAF does it, but they used to have staff
> members draft the decisions first, then submit them to the Panelists.
> The Panelists could adopt, modify, or reject the draft decisions. I'm
> not sure if they do that when there's a three-member Panel, since
> contested matters are generally more complex and more difficult to
> decide."
>
> and later:
>
> "Judges often rely on law clerks to assist them to draft decisions.
> The idea may not be all that different. The only issue would be
> whether panelists are abdicating their responsibility to be impartial
> fact finders in lieu of just signing onto a draft decision. I don't
> believe that most panelists would do that, but for some, it might
> happen - especially if they have a particular view of respondents that
> fits the draft."
>
> So, I hope the above helps members of this PDP understand that this
> issue isn't "coming out nowhere".]
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
>
> On Tue, Apr 24, 2018 at 12:24 PM, George Kirikos <icann at leap.com
<mailto:icann at leap.com> > wrote:
>> Thanks for the updated document, and for reflecting many of the
>> comments I had previously submitted:
>>
>> https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002890.html
>>
>> Some additional thoughts:
>>
>> A] On page 13 of the redline document, Q10 (with regards to the
>> "ghost-writing"), the question was not intended to be "incendiary", as
>> per Justine Chew's comment. The issue had been brought up in the past
>> by Paul Keating (a member of this PDP), in a comment to an article in
>> 2010 on CircleID:
>>
>> http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/
>>
>> See his comment (#2) on that page, which I'll reproduce in full:
>>
>> "Jeff, Here are a few of the things that worry me about all of this:
>>
>> 1. No ADR provider is under contract with ICANN. There is thus
>> absolutely no accountability. Given NAF's history with the
>> authorities in connection with their having fixed the credit card
>> arbitration process, one wonders why this situation remains.
>>
>> 2. Concerning statistics (mostly about NAF) have come out regarding
>> repetative appointments of a select few panelists.
>>
>> 3. On prior occasions I have asked for corrections in NAF decisions
>> and have been told that it was not possible, that they would not
>> request panelists to do so, and they objected to any attempt on my
>> part to raise the issue directly with the panelists - even if copying
>> the other side in any correspondence.
>>
>> 4. I can understand the desire not to have matters continued post
>> decision - such would be contrary to the spirit of the UDRP. However,
>> to undertake a change to decisions without publication and an audit
>> function is simply unheard of. In the US as you know, when a court
>> alters an opinion it publishes notices of the modification and it is
>> the judges who are doing the modification. Here there is no
>> indication at all that any panelist made the request and no public
>> record keeping of the change.
>>
>> Overall, the ADR providers are a law unto themselves. There is no
>> appeal and no accountability. WHile 4(k) allows a post-UDRP legal
>> action, no care was taken when writing the UDRP to investigate whether
>> a proper cause of action exists for such a proceeding in the "Mutual
>> Jurisdiction". There are no standards for panelists (one is a traffic
>> judge with no IP experience at all). Appointments are not
>> statistically random. They create their own supplemental rules. They
>> actively and selectively promote lines of decisions (e.g. WIPO's Panel
>> Guidelines). In the case of NAF they are (with reason) suspected of
>> having inside clerks ghost-write opinions for delivery to the
>> panelists. Now this. We are in a race to the bottom here. While
>> overall I would say that the vast majority of decisions are correctly
>> decided, it is worrying that registrants are forced by contract to
>> participate in such a system. The proper test for a judicial system
>> is not whether it gets it right in the easy cases but rather it has
>> adequate protections to ensure that the difficult ones are treated
>> properly. "
>>
>> Given that, I thought it appropriate to ask that particular question,
>> so that the providers can let us know whether that ghost-writing is
>> actually happening or not. Frankly, I found it disturbing that it
>> might be happening when I first learned of that possibility back in
>> 2010, and if it's happening, then the rules need to be strengthened.
>>
>> B] With regards to the "Effect of Court Proceedings" question (page 15
>> of the redline document), we know that WIPO is aware of court
>> proceedings after UDRPs (see:
>> http://www.wipo.int/amc/en/domains/challenged/ , although they've
>> failed to update that regularly, despite new cases being brought to
>> their attention). Perhaps something similar exists for the URS. If the
>> providers aren't aware of it (and you'd think they would be, given
>> their "suspension' nameservers would be changed by the registry
>> operator to reflect a court proceeding), then the registry operators
>> should be asked (since they'd probably be ordered to change the
>> nameservers back).
>>
>> C]. With regards to the final question on page 16 (running on to page
>> 17), Sub Teams shouldn't be making "conclusions" on anything
>> (decisions are made by the entire membership, not subteams). As to the
>> merits/scope of that question, it's not been all rainbows and unicorns
>> at NAF. I think it's important to know whether they've actually
>> learned from their past, and adopted changes to reflect the concerns
>> in those serious legal matters. If they haven't, that it's just been
>> "business as usual" for the domain-related cases (after no longer
>> doing consumer credit disputes), then that has policy implications. If
>> we as a PDP simply go with the answers already submitted, that's fine
>> with me, but I was bending over backwards to give them a chance to
>> improve their answers.
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <ariel.liang at icann.org
<mailto:ariel.liang at icann.org> > wrote:
>>> Hello everyone,
>>>
>>>
>>>
>>> In preparation for tomorrow's WG call, please be so kind to find
attached
>>> the redline document of the proposed questions to URS Providers. The
>>> document includes comments/suggestions from WG members, and the
>>> input/feedback to these comments/suggestions from the Providers Sub Team
>>> (received by the deadline at 12:00 UTC on Tuesday, 24 April).
>>>
>>>
>>>
>>> Please be so kind to review this redline document prior to the call
tomorrow
>>> (Wednesday, 25 April at 12:00 UTC). Thanks again to those who have
commented
>>> and provided input!
>>>
>>>
>>>
>>> Best Regards,
>>>
>>> Mary, Julie, Ariel, and Berry
>>>
>>>
>>>
>>>
>>>
>>> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org
<mailto:gnso-rpm-wg-bounces at icann.org> > on behalf of Julie Hedlund
>>> <julie.hedlund at icann.org <mailto:julie.hedlund at icann.org> >
>>> Date: Friday, April 20, 2018 at 2:43 PM
>>> To: "gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org> "
<gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org> >
>>> Subject: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25
>>> April 2018 at 1200 UTC
>>>
>>>
>>>
>>> Dear RPM PDP WG members,
>>>
>>>
>>>
>>> Per the WG Co-Chairs, here is the proposed agenda for the Working Group
call
>>> Wednesday, 25 April 2018, scheduled for 1200 UTC (note earlier time -
>>> calendar invite will be sent via separate email):
>>>
>>>
>>>
>>> Proposed Agenda:
>>>
>>> Roll call and updates to Statements of Interest
>>> Status of Questions for Practitioners
>>> Finalize Questions for Providers
>>> Notice of agenda for 02 May meeting
>>>
>>>
>>>
>>> Best regards,
>>>
>>> Mary, Julie, Ariel and Berry
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> gnso-rpm-wg mailing list
>>> gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org>
>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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