A relevant inquiry from this might be what evidence is necessary for the complainant to establish "passive holding" of the domain under the URS 'clear and convincing' vs. UDRP 'preponderance of the evidence' standards?

Preponderance of the evidence is usually interpreted as 'more likely than not', while clear and convincing can be understood as 'substantially more likely than not'.

When you are dealing with a domain name that does not resolve to an active website, e.g. "passive holding" - there doesn't seem to be a lot of room for argument. And even if we had access to the pleadings and evidence, this is ultimately a subjective determination where reasonable minds can see things differently.

So I don't really see how a case review by this WG can add much to the equation, but if anyone has views on that please share for discussion.

Best,

Claudio

On Thu, Feb 8, 2018 at 8:01 AM Paul Keating <Paul@law.es> wrote:

Brian,

I do not see how the extraction of data can be linked to an "attempt to rewrite a well-established domain name law doctrine established in thousands of UDRP cases and now being applied in the URS context”. Data is data. The goal is to determine IF in fact the doctrine is in fact being applied. This is certainly within the ambit of this WG and as a representative of WIPO such an undertaking should not be of concern. You certainly believe that the WIPO panelists correctly apply the rules and WIPO goes to great lengths to ensure that panelists are properly educated. Unfortunately other ADR providers do not have such a track record.

Be well,

Paul

From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of "BECKHAM, Brian" <brian.beckham@wipo.int>
Date: Thursday, February 8, 2018 at 12:52 PM
To: Julie Hedlund <julie.hedlund@icann.org>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org>
Subject: Re: [gnso-rpm-wg] Action Items from 07 February Working Group Call

Thanks Julie,

As to the call for input in the next 48 hours, based inter alia on arguments raised on last night's call, my own view is that it does not seem productive for staff -- at present -- to proceed (or continue) with URS data extraction.

Before time and precious resources are spent on data extraction (not to mention analysis), there should be agreement from WG members as to what should be extracted and to what end, e.g., producing a recommendation as to the minimum elements a URS determination should include. As to that particular end however, frankly, it should be possible to already agree on such elements now (several have already been mentioned on the last two calls, such as the trademark at issue and domain name use).

An email from George Kirikos perfectly underscores the reason for some of the arguments raised on the last several calls; there, he said:

"It's possible that the first URS was wrongly decided using the basis of "non-use" as proof of "bad faith use" (which the 2nd URS correctly rejected), but we don't know for sure given the lack of any detail/reasoning in the first URS decision."

On the one hand, this is merely one view as to whether a URS case was decided correctly, to which there may very well be a counter view.

On the other hand, and I think this gets to the concerns being raised, it is effectively an attempt to rewrite a well-established domain name law doctrine established in thousands of UDRP cases and now being applied in the URS context -- and yet ostensiblythis flows from assessing whether a panel correctly applied the burden of proof.

Thanks for considering,

Brian

From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of Julie Hedlund <julie.hedlund@icann.org>
Sent: Wednesday, February 7, 2018 9:01 PM
To: gnso-rpm-wg@icann.org
Subject: [gnso-rpm-wg] Action Items from 07 February Working Group Call

Dear All,

The action items noted by staff from the Working Group call held on 07 February 2018 (1800 UTC) are as follows.

Staff to recirculate the latest version of the Compilation of Current URS Discussion Documents (see attached the latest version which was updated from the meeting on 01 February);
NEXT 48 HOURS: Staff seeks direction from the Working Group on whether they should proceed with data extraction for all URS cases, some URS cases, or no URS cases. If some URS cases, then staff can extract data based on specific data elements to be agreed by the Working Group (e.g. types of cases for which such data extraction is deemed needed).

Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the transcript or recording. The recording, transcript, Adobe Connect chat, and attendance records are posted on the wiki.

Best Regards,
Julie
Julie Hedlund, Policy Director

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