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Tom Cruise Wins TomCruise.com, Hardly Unpredictable

The UDRP process (there is no appeal) has become so polarised that if you were provided with the names of the panelists in any given case, you could predict with almost complete certainly what the outcome was, regardless of the merits of the case actually being heard.

So while Jeff Burgar is an extreme example of a domain registrant, Tom Cruise's victory serves only to highlight the need to reform the domain arbitration process.

Read full story: The Register

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Re: Tom Cruise Wins TomCruise.com, Hardly Unpredictable John Berryhill  –  Jul 24, 2006 11:00 AM PDT

While there are some differences in the way panelists approach certain issues, Kieren goes off track by comparing outcome percentages of various panelists.

Those numbers are simply more reflective of the types of cases that are assigned to the panelists, or whether those panelists are frequently requested by the parties.

For example, among attornies who regularly defend domain registrants in three-member panel proceedings, there is a "short list" of panelists who have seen several of the handful of common fact patterns, and have a known approach to certain issues.  Consequently, regardless of whether their views are widely held, those panelists are frequently chosen by respondents.  That has a tendency to skew the percentages relative to panelists who are assigned a high number of no-brainer complainant wins, defaults, and random cases.

The last time I saw anyone run the numbers, respondents actually win the majority of respondent-requested three-member panel proceedings.  One of the proposed reasons for that result is simply that respondents are more willing to pay the extra fee for a three-member panel in disputes where the respondent believes (and correctly) that it has a meritorious case.

Also, the set of all panelists is large enough, that you are still dealing with relatively low numbers of cases assigned to any one panelist, so that statistical comparisons are not necessarily significant in view of the small sample space.

Having dealt with a lot of these cases, I do not believe there are panelists who "automatically" rule one way or the other.  Of course in any system of human judgment, there are inconsistencies and differing viewpoints on various issues.

If anything, it would be worthwhile to consider whether there could be a reliable mechanism for early identification of "no-brainer" cases.  When, for example, the respondent has 50 typo variations of "yahoo", it shouldn't really take three months and $1500 to sort that out.  By the same token, the process should provide a "no contest" option for the respondent in situations where the respondent believes it registered the domain name in good faith, but does not believe the domain name to be worth the effort of a response.

Re: Tom Cruise Wins TomCruise.com, Hardly Unpredictable Kieren McCarthy  –  Jul 26, 2006 1:50 AM PDT

I agree with you John in the sense that the stats can't be relied upon as proof - what stats ever can? - but what they do do is provide back-up for the endemic problems within the current UDRP. After all, they *do* show what would be the impact if the criticisms made were true, thereby adding to the weight of the criticism.

The biggest problem is this:

* UDRP arbitrators have a financial incentive to chose in favour of the complainant. The more decisions made in the complainant's favour, the more complaints made, the more money that the arbitrators receive *directly*

Every possible bias from that position is borne out by the stats. WIPO choses for the complainant more than any of the other arbitrators and it also gets the most customers.

There is a direct correlation between the number of cases that a panellist has been asked to preside over and how often they chose for the complainant.

This is big problem number two: WIPO is allowed to choose panellists how it sees fit, and it simply refuses to give any insight into that selection process. I know because I have asked numerous times. When I started inquiring over why various panellists had been dropped by WIPO, there was a clear and conscious effort to keep the mechanisms at work opaque.

Big problem number three: there is no appeals mechanism. Some of the decisions made by WIPO have been absolutely dreadful and would never stand up to an appeal. And yet these self-same decisions are then used as case law in future decisions.

These three main problems (there are more) make the whole UDRP eminently corrupt and it really is time - after five years of delays - to review and improve the whole system.

Kieren

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