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Additional Notes on Mediation and Class Action options and views on “use cases”, based on the most recent Working Group mailing list discussions (please note that these are to be read together with the Summary Document, which contains additional suggestions and notes from the Working Group’s continuing deliberations):
On mediation:
- Many WG members support adding mediation to the TM-PDDRP; however, there is no clear agreement as to whether mediation can be undertaken on the basis of a skeletal complaint or if there first needs to be a full(er), more formal complaint filed, or possibly some kind of “middle ground” such as a “mediation statement”. There seems nevertheless to be agreement that mediation should be confidential and mutually consensual. A suggestion was also made via email that if the complaint proceeds to a panel (i.e. the mediation fails), the panelist should not be the person who handled the mediation.
On “class action”:
- As noted during the last WG call, a more apt term may need to be agreed on for this since the discussion is centered on the ability of various TM owners to either join a proceeding, or file some sort of joint complaint (rather than it being a case where a single complainant represents a class of similarly-situated complainants). At least one WG member vigorously opposes any form of class action, while a number of other WG members support the idea.
- In this regard, Working Group Members may wish to consider the following question from Working Group Member Darcy Southwell that was posted to this mailing list:
“If what we’re trying to get to is a method for the trademark owner to identify prolific abuses by a registry and to then have a more aggressive method for pursuing the registry, is there instead a way to build (1) public disclosure of filings and decisions (the way UDRPs work) and (2) place a burden on panel reviewers to rely on the precedence of prior findings (unlike the UDRP) and take those into account when determining remedies?”
On “use cases”:
- As the Working Group continues to consider the advisability and feasibility of developing appropriate use cases, you may also wish to note another question from Darcy:
“Do we have specific examples of registry behavior that doesn’t meet existing standards but is nonetheless concerning when it comes to profiting from sale of infringing domains?”
Documents (for the call): Updated TM-PDDRP Issues Document (from 21 July)
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