1. In general, it seems to me that the guidelines are longer and more
detailed than necessary. Some of the rules, such as when and how someone
might be barred from future actions by reason of abuse of the process,
might be better left for case by case determination. There will be much
more detailed facts available as real cases are considered. Obviously,
this suggestion comes from someone raised in the common law tradition.
It reflects concern that the net is changing so rapidly that only a
common law tradition is flexible enough to adapt with it. We just don't
know enough about how the system will work in practice to be able to
write down in advance with certainty all the rules that ought to apply.
2. I'm concerned that the procedures and substantive rules are
sufficiently complex that it will be impossible for anyone to interact
with the system without hiring an expensive lawyer. That will reduce
access and trust of the system. A shorter document, with more emphasis
on the essential showings required ("unfairly weaken or damage"?), might
be easier for lots of people to deal with. The drafters are now
personally very familiar with the text. It will be hard for them to
appreciate how daunting the current draft will likely be for a lay
person or even a non-expert lawyer. It should be possible to simplify,
because the substantive essence of the guidelines really does come down
to a few core principles and some lists of factors that should be
considered.
3. The system appears designed not to respect common law trademarks.
Numerous references to the "grant" of a right from an administrative
agency seem to not only require registration as a prerequisite to
litigation but also to rule out respect for rights acquired from use. If
that is not the intent, some clarification may be appropriate. Perhaps
the problem is merely linguistic, insofar as the draft suggests that
rights only stem from a governmental "grant" rather than being
recognized after having arisen from use.
4. Are there any limits to a bond? Since the panel can dispose of the
bond, it could be a way to award damages, indirectly.
5. The reference to balancing considerations should note that the domain
name holder may have rights other than "intellectual property rights"
that bear on its entitlement to use the domain name. Perhaps the draft
should more explicitly mention rights relating to free expression as
well.
6. Why should a challenger have to be sure to request transfer in the
"request for challenge"? What happens if the complaint evolves over
time?
7. I'm not sure how the "sole purpose" tests will be capable of
assessment in the context of online hearings, in which it will be hard
to assess credibility.The overall spirit of the draft suggests that
rulings should look to objective factors wherever feasible.
8. Various terms -- trivial, substantial, unfairly -- will develop
important glosses. What is the plan for systematic publication and
dissemination of precedents? Is there any plan to produce an organized
gloss or treatise on the subject of rights and duties in net
identifiers? Perhaps the drafting team and the publishing authority
should establish an informal advisory counsel of legal academics who
commit to provide commentary and analysis for the authoritative online
site.
9. The references to web page use should be supplemented to take account
of email uses of domain names.
10. The guidelines don't themselves make very clear where and how an
appeal is
taken. Cross references to the best sources of information on that topic
would be helpful.