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discuss Unique idea to help grow domain industry

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AbdulBasit.com

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AbdulBasit.com
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Hello and Assalamo Alaikum,

I always think about making our domain industry more stronger than ever. I’ve come up with a simple but great idea and if this can be implemented, it will be helpful for all domainers participating in this great cause.

There are many instances where domainer gets hit with UDRP and just because of lack of funds, he/she is unable to respond back. Although there have been some cases where a domainer been hit with UDRP and don’t even bother responding having loads of $$$ and ends up even losing it. Well, I’m not talking such lazy domainers and we can rule them out for sure. Domainer including newbie, veteran, panel members or can be any one participate and donate funds.

So what my proposal is we can have 3 or 5 members panel which comprises of domainers and at least one IP lawyer. One of the panel members shall be collecting and sharing it publicly about the total collected and available funds.

Next step is we’ll urge all domainers who’re well capable and have adequate funds to donate on regular basis to collect as much funds as possible which will cover all the expenses from responding to UDRP utilizing the services of our IP lawyer and other expenses incurred if any.

Once we’re well set in terms of securing funds, any domainer who gets hit with UDRP and can contact us in order to seek help in responding. We’ll leave up to the honesty of that domainer to inform if he/she is having no extra funds to respond or can partially cover the fees.

There will be a criteria of minimum two things to meet before we proceed any further.

1) There has to be enough funds easily available with us to cover all necessary expenses.

2) Majority of the panel members MUST agree upon the case in hand is good enough to be responded back. Because we would not be wasting any money on obvious trademark domains.

If the above two conditions are met, funds will be allocated for that particular case and our IP lawyer will take it up further.

I would like everyone to chime in and give your suggestions and/or feedback.

Thank you!
 
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The views expressed on this page by users and staff are their own, not those of NamePros.
We can start with one lawyer and other panel members be top domainers. As we grow further, can add more lawyers and do the way you suggested which will keep things in balance.

Sounds good. Let us/me know how it goes. Hope the execution of your idea works out and for it to accomplish its intended purpose.
 
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@AbdulBasit.com You have a good idea and it would be okay if the idea is well nurtured to fruition especially the money collections aspect of it should be given more thought.
At same time the @Kassey Lee idea below should be given thought, because if anyone has idea on how to do away with UDRP the problem would be minimal or not having anything to do with such a name.
So I will support having UDRP section on namepros if it does not already in place.

When money is involved, it may create all sorts of friction or problems. Actually, there is something we can all do, and it involves no money.

For small investors where a domain is worth less than $5,000, it may not be worth it to hire someone to defend your case. The good news is, there have been cases in the past where the domain owners self defended and own. So, what I suggest is to self educate ourselves so that we can self defend ourselves. What is needed is a general understanding of the UDRP ruling. If not available yet, we can create a section within NP dedicated to analysis of UDRP cases. Also, download the standard UDRP response document. When you read a UDRP case, if you like any part relevant to your situation, copy it to prefill your response document. After a while, you'll have a rich document tailored to your investing situation.
 
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This is to update that we've already a lawyer on board.

The main part is the domainers who're willing to participate and actively help others and make contribution to make this idea implementable and keep running.

As we've got plenty of positive responses, I would like to invite everyone to give their input as how much one is willing to contribute/donate and if we get enough good responses, we shall move forward to find the panel members which is easier step to complete IMO.

Since I've presented this idea, I will be the first to contribute each year in $xxx if all goes well as planned and others are willing to play their part in it.
 
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People will roll over on first legal letter.
 
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I would look to get @jberryhill take on this, John might not have the time to read this whole thread, but he would be the person I would trust the most on whether this concept has any real chance of success, and what are the legal requirements.
 
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Enter Abdul's "Panel", which would need to essentially conduct a mock UDRP arbitration in the case of each and every domain entered in the "sweepstakes"! Interesting how Abdul's case study (the "Carribean" one left undefended) would fare in front of his proposed "Panel" :sneaky:
I was wondering the same thing. The idea is sound, but given Abdul's example would give it a shaky foundation, imo. If those were the kinds of cases that would be put forth, and then accepted by "The Panel", funds would be quickly dried up, leaving little room for more legitimate cases.
 
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I was wondering the same thing. The idea is sound, but given Abdul's example would give it a shaky foundation, imo. If those were the kinds of cases that would be put forth, and then accepted by "The Panel", funds would be quickly dried up, leaving little room for more legitimate cases.
Let people who apply to have their cases defended participate in the costs. This can be as little as 10% or as much as, say, 50%, but require them to have a stake in this. Otherwise Abdul's Panel will be swamped by wannabe's looking for free lunch! (n)

The longer I think about Abdul's idea, the more I like it, contingent on some important changes: don't go for free service, think sponsoring / partial financing. The money collected will benefit more domainers.
 
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I was wondering the same thing. The idea is sound, but given Abdul's example would give it a shaky foundation, imo. If those were the kinds of cases that would be put forth, and then accepted by "The Panel", funds would be quickly dried up, leaving little room for more legitimate cases.

Funds would be granted/allocated to only legitimate cases which the majority of panel members think is worth defending the domain and responding for it. And I'm sure majority of members would give green signal to that particular case only in which they think is deserves it no matter what the outcome would be. As we've seen the owner fails to defend the domain even after going with 3 members panel at WIPO and hiring a reputed attorney and still in the end domain and money all gone.
 
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Let people who apply to have their cases defended participate in the costs. This can be as little as 10% or as much as, say, 50%, but require them to have a stake in this. Otherwise Abdul's Panel will be swamped by wannabe's looking for free lunch! (n)

The longer I think about Abdul's idea, the more I like it, contingent on some important changes: don't go for free service, think sponsoring / partial financing. The money collected will benefit more domainers.

If we're able to successfully execute this idea and somehow stuck in the middle of not gathering enough funds, we can always put a clause right from the start that in case of lack of funds, we shall ask from the person who's looking for our help to add some % of funds in order to proceed further. This will show genuine interest from the person who's really looking to defend his domain.

So I understood your point of view which is good too and can be added. But the main thing is are we all united to take the big step?
 
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The idea of general "UDRP insurance" has come up before, and a workable model has not been developed.

Adding a panel to select cases is interesting, and I have some questions about how that might work.

The panel is proposed to have a mix of non-lawyers and lawyers. I gather the domain registrant is to take their case to the panel, which is going to discuss it all on a non-privileged basis, presumably electronically. In other words, the deliberations, discussion and vote of the panel are all going to be subject to discovery if the complainant proceeds from the UDRP to a lawsuit. It is a mechanism for obtaining legal advice from a collection of both lawyers and non-lawyers, but with none of the protections one normally would have in the context of obtaining legal advice.

In other words, let's say there are five people on the panel. Two of them think the case is defensible and three of them don't. The complainant can proceed to litigation and obtain that information and the opinions of the panelists who told the registrant that the case was not defensible. So, right out of the box, the process generates a liability, since you have a process for generating a lot of correspondence which is discoverable in litigation and not protected by any privilege. Of course, I would imagine that the panel has a mechanism of asking questions of the domain registrant during this process, since otherwise they don't have any facts to go on in making a determination of what evidence the domain registrant has in their favor.

Even worse would be a situation in which the panel by, say, 3 to 2 decided NOT to defend the case. That would be a particularly bad piece of discoverable evidence to have waiting to come out of a closet. Everyone involved will have to understand that any discussion, correspondence, notes, etc. may be printed on a big board and shown to jury someday, and that anyone involved may be deposed about the discussion.

Another odd thing is the idea of a charity that is essentially geared toward helping people make money, which is an odd thing for a charity to do. You are going to donate, say, $200 for someone else to defend a domain name which they can eventually sell for, say, $20,000? Cool.

And that brings up another set of scenarios to be considered. Let's say the following happens:

1. UDRP is filed. Domain registrant goes to this group looking for help and obtains a defense.

2. Some lawyer is chosen (it's unclear how) to write up and file the Response, and is paid from the pool.

3. The Complainant, after seeing the Response, decides to engage in settlement negotiations, and the case is settled for $X, subject to a confidentiality agreement.

In that situation, the pooled funds have essentially been used to leverage a settlement for the domain registrant. Of course, that doesn't have to happen during the proceeding, but can occur at some point down the road. The point being that a bunch of people have donated money so that someone else can make a profit, which is usually not what people donate money to achieve.

You could say, "Well, okay, if the case is settled, the registrant pays the pool back" which might work fine unless step 3 is:

3. The Complainant, after seeing the Response, decides to file a lawsuit instead. Upon determining the expense of a lawsuit, the domain registrant surrenders the domain name to settle the dispute.

...since a settlement of the dispute doesn't necessarily mean that the domain registrant is going to get paid.
 
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The idea of general "UDRP insurance" has come up before, and a workable model has not been developed.

Adding a panel to select cases is interesting, and I have some questions about how that might work.

The panel is proposed to have a mix of non-lawyers and lawyers. I gather the domain registrant is to take their case to the panel, which is going to discuss it all on a non-privileged basis, presumably electronically. In other words, the deliberations, discussion and vote of the panel are all going to be subject to discovery if the complainant proceeds from the UDRP to a lawsuit. It is a mechanism for obtaining legal advice from a collection of both lawyers and non-lawyers, but with none of the protections one normally would have in the context of obtaining legal advice.

In other words, let's say there are five people on the panel. Two of them think the case is defensible and three of them don't. The complainant can proceed to litigation and obtain that information and the opinions of the panelists who told the registrant that the case was not defensible. So, right out of the box, the process generates a liability, since you have a process for generating a lot of correspondence which is discoverable in litigation and not protected by any privilege. Of course, I would imagine that the panel has a mechanism of asking questions of the domain registrant during this process, since otherwise they don't have any facts to go on in making a determination of what evidence the domain registrant has in their favor.

Even worse would be a situation in which the panel by, say, 3 to 2 decided NOT to defend the case. That would be a particularly bad piece of discoverable evidence to have waiting to come out of a closet. Everyone involved will have to understand that any discussion, correspondence, notes, etc. may be printed on a big board and shown to jury someday, and that anyone involved may be deposed about the discussion.

Another odd thing is the idea of a charity that is essentially geared toward helping people make money, which is an odd thing for a charity to do. You are going to donate, say, $200 for someone else to defend a domain name which they can eventually sell for, say, $20,000? Cool.

And that brings up another set of scenarios to be considered. Let's say the following happens:

1. UDRP is filed. Domain registrant goes to this group looking for help and obtains a defense.

2. Some lawyer is chosen (it's unclear how) to write up and file the Response, and is paid from the pool.

3. The Complainant, after seeing the Response, decides to engage in settlement negotiations, and the case is settled for $X, subject to a confidentiality agreement.

In that situation, the pooled funds have essentially been used to leverage a settlement for the domain registrant. Of course, that doesn't have to happen during the proceeding, but can occur at some point down the road. The point being that a bunch of people have donated money so that someone else can make a profit, which is usually not what people donate money to achieve.

You could say, "Well, okay, if the case is settled, the registrant pays the pool back" which might work fine unless step 3 is:

3. The Complainant, after seeing the Response, decides to file a lawsuit instead. Upon determining the expense of a lawsuit, the domain registrant surrenders the domain name to settle the dispute.

...since a settlement of the dispute doesn't necessarily mean that the domain registrant is going to get paid.

You are certainly right about the problems and liabilities involved here, but in the cases that the complainant is clearly overreaching and wants to use UDRP as a mechanism to obtain a valuable domain name without paying its rightful price there has to be a way that the domain Industry can support and protect its members from losing their domain names to such predatory UDRP fillings and any help given to the defendant would certainly be justified even if it is done by a nonprofit or charitable group or organization. IMO
 
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...So I understood your point of view which is good too and can be added. But the main thing is are we all united to take the big step?
Putting John Berryhill's as usual eye opening points aside for a moment...

"They were under attack, but their big guns were silent, for many reasons, first of them being... lack of ammunition!"...

Which is to say, that as much as I like your idea, in principle, first and foremost, I don't think you will find enough sponsors willing to put up meaningful amounts of money (for reasons I've alluded to in my first post, not to mention the valid points Dr. Berryhill has added).
 
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Putting John Berryhill's as usual eye opening points aside for a moment...

"They were under attack, but their big guns were silent, for many reasons, first of them being... lack of ammunition!"...

Which is to say, that as much as I like your idea, in principle, first and foremost, I don't think you will find enough sponsors willing to put up meaningful amounts of money (for reasons I've alluded to in my first post, not to mention the valid points Dr. Berryhill has added).

I understand your point and that's the main problem too IMO. That's why I published the same thing on my blog as well as this forum to see what kind of response we get and then can take up from there on. In worst case, things will remain as it is but I wanted to give it a try and see.

I'll reiterate again that I'll be first in line to donate every year if I see there are enough people willing to donate.

In the end, I've nothing to lose since I personally can bear the UDRP hits in future. Though it was very difficult to even afford paying lawyer fee for my 2 lost cases. I can feel the pain of others who are in similar situation where I was in the past.
 
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the deliberations, discussion and vote of the panel are all going to be subject to discovery

Discovery is part of the UDRP process? I thought it was a one shot filing. So in preparation for filing, the respondent can receive one of those “ask for everything” boiler plate deep dives?
 
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Someone I know was a victim of a UDRP a while back. He defended the claim for a domain he had registered and held for over 10 years, with a site on it, but the lawyer he chose was a twit and based his defence on laches, ie his client had been allowed to trade on the name for such a long time without hindrance that any right the claimants might have had was lapsed.

But a UDRP does not have to pay attention to the restrictions that are commonly applied in practice of the law. The business claiming the name had recently changed hands, and the new TM owners wanted the domain.

That defence was inappropriate - the defence should have been based on the fact that a trade mark is not allowed to cover all areas of trade. I could have given better advice than that lawyer myself, but I didn't even know about the issue until everything was done and dusted.

IIRC it cost the victim significant funds, over $3500, and he just gave up on the matter because it was costing him dearly.

I might point out that he was running the site for no profit, its major content was the Holy Bible, and most of the traffic was Chinese - you can still get jailed in China for owning a bible, but you don't get whipped like in Saudi Arabia ( which raises the question "why are these people so scared of an old book?").

Now, there is someone that could have used some help - but he is not really a domainer, he just owns a few domains and they are mostly developed.

I am mentioning this because it demonstrates that the UDRP process can be unfair.

When you read what should happen, the panel should apply their knowledge and experience to the situation and come up with a fair result.

In that case, they worked in ignorance of US TM law, instead of putting their knowledge to work. Just like a judge, they considered the evidence presented and found in favour of the fattest wallet. I suspect that a lot of cases are resolved in that manner.
 
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Discovery is part of the UDRP process?

No, but it doesn't preclude litigation.

I've had two cases recently where the Complainant, after receiving the response, wanted to stay the UDRP proceeding to discuss "settlement", when in fact they wanted to put their loser of a UDRP case on hold in order to prepare and file litigation instead, and then withdraw the UDRP. For example: <https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2016-2601>

There have also been plenty of UDRP's which were followed by litigation brought by a losing Complainant.

...in the cases that the complainant is clearly overreaching and wants to use UDRP as a mechanism to obtain a valuable domain name without paying its rightful price there has to be a way that the domain Industry can support and protect its members

I certainly agree with that. I think the general idea is a good one, and it has been proposed before.

As far as picking out overreaching cases, one of the most frustrating loops that I repeatedly fall into is that, like most lawyers who do these things, I'm certainly willing to take a look at someone's UDRP case and give them my honest impression, based on having literally done hundreds of these things, of what their chances might be, how much time I'd need to do it, and what might be involved. Fairly often, and my experience is not unique in this regard, the prospective UDRP respondent doesn't agree with my assessment and wants to chew up time arguing with me about it.

I mean, look, I can guarantee you there is always an attorney who is willing to take your money for some fool's errand. Attorneys who regularly do these things - me, Ari and Jason, Zak, Stevan, Brett, Karen, Paul, David, Howard (and I hate to make a list, since I will always forget someone just off the cuff) - know when someone is "going down the list" and collecting opinions and estimates, which is fine. What also happens is that sometimes one of us will take a case that the others thought was a loser, and wins it. But you'd be surprised to know how often someone thinks they have the RDNH poster child, when what they have is just a real turkey of a situation. My general policy is that if you don't like my free assessment, I double your money back.

Attorneys who regularly defend UDRP's also have something of an informal email list where we pick over notable decisions with one another. How that would work in terms of conflicts and confidentiality on the intake end of things is a puzzle.

Undefended or poorly defended UDRP cases in circumstances of clear overreach create bad decisions which get recycled and used again. If there were a mechanism to provide a defense for those cases, it would be good for all domainers. I've taken several over the years for no charge - typically one a year - and I've also ended up doing some for which I got stiffed (which is why it is now extremely unusual for me not to require an advance retainer). But that's just not a sustainable business model.
 
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Another thing to think about is whether there is a "financial need" component to this thing, or is it just based on whether it is a good case?

I mean, there are large portfolio owners who, I can guarantee you, are going to have good, defensible UDRP cases during the course of the next year. After all, the largest portfolios are simply going to attract more UDRP cases as a simple question of probability. That's why, for example, Name Administration Inc. has more UDRP wins than any other domain registrant (or did the last time I checked - I don't keep count). It's a simple matter of having one of the largest domain portfolios in the first place.

So, is anyone eligible to put in to the pool for a defense? I can't see why domainers who are a notch above the hobby level should be underwriting a defense for, say, Vertical Axis.

Or do you limit eligibility to some "financial need" threshold, and how would that work?
 
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In my opinion any financial assistance or free advice that is provided should be limited only to those who are truly the victims of overreach and don't have the means to defend themselves, as for those who are financially well off UDRP should be looked at as a cost of doing business (the same as domain renewal costs).
 
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Another thing to think about is whether there is a "financial need" component to this thing, or is it just based on whether it is a good case?

I mean, there are large portfolio owners who, I can guarantee you, are going to have good, defensible UDRP cases during the course of the next year. After all, the largest portfolios are simply going to attract more UDRP cases as a simple question of probability. That's why, for example, Name Administration Inc. has more UDRP wins than any other domain registrant (or did the last time I checked - I don't keep count). It's a simple matter of having one of the largest domain portfolios in the first place.

So, is anyone eligible to put in to the pool for a defense? I can't see why domainers who are a notch above the hobby level should be underwriting a defense for, say, Vertical Axis.

Or do you limit eligibility to some "financial need" threshold, and how would that work?

As @oldtimer said "In my opinion any financial assistance or free advice that is provided should be limited only to those who are truly the victims of overreach and don't have the means to defend themselves, as for those who are financially well off UDRP should be looked at as a cost of doing business (the same as domain renewal costs)."

That's my opinion too. We will cover only those who genuinely cannot afford to respond UDRP with the help of professional lawyer.
 
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That's my opinion too. We will cover only those who genuinely cannot afford to respond UDRP with the help of professional lawyer.
I think most of us, if not all, agree with this sentiment. But the key question here is: how would this work? How do you determine "who genuinely cannot afford to respond UDRP with the help of professional lawyer"?

Right, so HugeDomains or BuyDomains will be sent packing. Okay, but how about me?*

Case study: I have almost 4,000 domains to my name and counting, growing my portfolio, with majority of my domains to be developed into well positioned websites. I expect to be hit with many new UDRP cases. Many are likely to be RDNH in nature, uniquely qualified IMHO for this support program.

But will the size of an applicant's portfolio determine access to the program? And if so, where do you propose the treshold at... 10...50... 100... 1,000 domains? And how will the panel verify the numbers, given most domains are now under domain privacy?

*) It's a hypothetical as I have successfully defended the few UDRP cases I had been hit with by myself and will continue to do so.
 
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There have also been plenty of UDRP's which were followed by litigation brought by a losing Complainant.

I see you won the UDRP, congrats, then they took your client later to another venue?

Purely as my personal knowledge the name seems a bit obscuro, perhaps not in Skiing or the EU though. They reference Barcelona which imo deserves to be defended as it is well known everywhere as a name. Gstaad is spelled weird, limited reach worldwide?, and was in fact dropped and erroneously expired, never heard of the place personally ( I Heard of Zermatt before though.) There are a lot more details I suppose in this as to the usage value. But like France dot com, another Geo, fighting a Govt with unlimited resources does not seem pragmatic unless you are wealthy. Living in Monaco though, funds probably are not the issue, lol.

Thank you for always participating here, your opinions are insightful and helpful. It appears as time goes on the UDRP cases accumulated become references and are like using case law to be used as in other civil actions. Unless someone was financially well off, I don’t see how a defense makes sense on some UDRP’s. Btw: Do you ever take on certain large strong cases on contingency?
Thx.
 
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Btw: Do you ever take on certain large strong cases on contingency?

There are no monetary awards in a UDRP, so I don't see how that would work.

That's somewhat related to my questions about "what if a case settles?". I mean, if I donate $500 to a fund that is going to be used to put someone in a position to negotiate a $50,000 settlement, then I might wonder if the fund is going to get its money back, since it was effectively just put into someone else's pocket.

It's like the old saying goes.... Build a man a fire and you keep him warm for a day. But light a man on fire and you keep him warm for the rest of his life.

or something like that.
 
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