[process2-comments] RFC-1

 Name: Chris McElroy Organization: Watchdog Position: President I will directly comment on the issues you refer to in your request for comment, however you also ask for comments on items not addressed within. Therefore the first comment I think should be included is conflict of interest issues. Panel Members being allowed to also represent clients in matters heard by the WIPO is totally unacceptable. This is a blatant example of an unethical practice and an extreme conflict of interest from which abuse and mistrust of the entire system you seek endorsement of. In no other similar venue can something like this not be considered totally inappropriate. The fact that this organization does not feel so troubles many of us. Even someone being "Considered" for a position on the panel should exclude themselves let alone be excluded by the panel based on their consideration. Another issue that anywhere else would be a standard. It is also not addressed here. An Appeals Process. In any legal process similar to these proceedings it includes the right to appeal the case. No Panel can assume they will always make the right decision. To not include an appeals process on top of allowing extreme conflicts of interest invite abuse of the whole process. The last item not listed for comment is an Arbitration or a Mediation is a process by which a neutral person or persons seeks to resolve a dispute between two parties. You describe this Panel and this organization as both Arbitrator and Mediator when you are neither. In line 6 of almost if not every case it states "this is a proceeding "Against the Respondant". An Arbitration or a Mediation is to imply the proceeding is not Against either party but neutral. This is not the actions this organization has shown to be the case. It is evident the organization acts for the entity who is paying for the proceeding and against the respondant from the beginning. The Complainant even chooses the size of the panel that will decide the case. In most proceedings the accused is given this option. In defense of Intellectual property issues, this panel does not take into consideration that when the majority of patents, trademarks and copyrights that have come before your panels were issued before the proliferation of the Internet as it is now. Many generic names were allowed to be trademarked or copyrighted because the agencies issuing these could not forsee the problem we now face. If they had many of these names would not have even been issued. So to base a decision on these names does an injustice to everyone concerned. I will only cite one case as point. Housewares and gifts. Those are names of common items, yet they were allowed a trademark. When the dotcom of the same name was filed this organization found them to be cybersquatting and their domain was given to the trademark holder. This is a trademark that never should have been issued. Therefore this organization in fairness must disregard trademarks that are too unspecific such as this one was. Bad Faith is a loosely applied term this organization asks our explanation of. Many have lost their domain names due to not having placed a website up at that location. In many summaries of cases you refer to the lack of a webpage that sells products or services or does something for the public good constitutes that one has no viable interest or right to the name. Since Courts have determined that a domain name is not property (Cited Case Sex.com) but a licensed service for a specific period of time then the holder of that license IS in fact entitled to use that name for that time period once issued. The time to contest this would be at the time of renewal if ever. There is no law that says when I register a domain name that I must have a website in that location or it can be taken away from me. Maybe I don't have the money to have it hosted yet or the timing isn't right yet or any number of reasons. A telephone number is the closest comparison to a domain name not an address. An address denotes a reference to property. A telephone number is a service as is a domain name. If I don't connect a phone to a phone jack and don't use my phone number but pay for the service, it's still my phone number. This panel has even found someone is cybersquatting if the person had no business offline of the same name. Again something that is not required to register a domain name but was used in a summary as proof the domain holder had no rights to or interest in the name. In a particular case the domain holder had the domain months before the company/complainant even began the business of the same name. The business claimed without proving it had filed for but had not even received a trademark yet. This organization assumed the trademark office was going to approve the name and that the company had in fact filed for one. Yet this panel decided to strip the domain holder of his rights to the name and awarded it to the company. (ecommerce) Which again is now a common name and one that even the antiquated trademark office might well have denied. This case represents the urgent need of an appeals process for I doubt that upon re-examination of this case it would stand. As to geographical names. No one owns a continent, Country, State, County, or City if not it's taxpayers. It is not owned by the governing officials. To call a domain holder a cybersquatter because he/she files the name of the geographical area in which they live is obviously wrong. Not only is it wrong, it creates a whole new set of conflicts since there are many cities and other geographical locations with the same name. Let's say Paris.com. Does Paris, France have the right to file a cybersquatting dispute or does Paris, Texas? Neither. The domain holder owns the rights to use the service for the registered period of time. Yet again this is not the case with the findings of this organization. (barcelona.com) With 84% of the cases being found for the complainant and the fact that panel members can also represent complainants and that by your own statement that it is a proceeding against the respondant, therefore not mediatory or arbitrary, and the fact there is no appeals process and the fact the entity paying for the process gets the options on how many members will sit on the panel for their case and that there is no appeals process should make it obvious to anyone that the validity of any findings by this organization are invalid and in fact reverse domain name hijacking. When you create a process by which the wealthy can strip the individual of their rights under the guise of legality you invite opposition by all who believe in justice and tarnish the name of justice itself. My contempt of the way in which this board has operated in the past does not however overshadow my belief that a fair system could and should be put in place. The process of selection of panel members is not designed so that impartial people will sit there. Those who seek the position seek only the power allowed by the finality of the decisions of the organization. The very fact that a licensed entity to register domain names allowed the name to be registered for a period of time is enough to allow the individual who registered it that specific amount of time to use it. If there is a dispute and it is decided that someone other than the registrant should have the right to the name, then all out-of-pocket expenses should be refunded to the individual or it should be resolved at the time of renewal except in the case the individual will do real damage to the proper name holder. Then and only then would it be ok to strip the individual of the name they registered.