Panelist recuse at NAF

[dvdrip]

Anyone had any luck with a panelist recuse at NAF?
WIPO does not allow a disqualification.

I got assigned the worst panelist. The only one I didn't want of all the panelists!

[marcorandazza]

What is wrong with the panelist? Define "worst".

[dvdrip]

Panelist has ruled against me. One of the very few. And it's one of the domains I should have won. eg Panelist said the Internet Archive is irrelevant when deciding legitimate interests.

[marcorandazza]

The Archive is "irrelevant?" That's a strange position to take.

The fact that he's ruled against you in the past before... that's not going to be grounds for recusal. You've got to find something that exhibits an inability for them to be impartial. Is there anything in the opinion that suggests that? Not just that they took what sounds like an illogical position, but that there is actual bias.

[dvdrip]

I am not sure I understand your interpretation of actual bias.

How about that in one other case the panelist accepted the internet archive as evidence that the Respondent does NOT have legitimate right but in mine the Panelist did not accept the evidence so that Panelist wouldn't find legitimate rights?

[marcorandazza]

That might help. I'd read through the opinion to find any indication that there is actual hostility toward you. If the panelist looked at an issue in one case one way and in another the other way, and it truly seems like it was due to bias, you may have something there. Without reading the opinion, I'm not sure I can really say. Feel free to PM me the opinion if you want.

[domaingenius]

Marc, sorry butt in this thread but it is relevant. Would appreciate your
advice similarly but next stage. Panelist refused to stand down. He ruled against me. Besides the decision, I also am not happy that he appeared not be be
impartial, i.e. he represents Microsoft who sell to the complainant, therefore
he benefits from the client.

Where can I take it to and when must I do so ?

thanks
DG

[marcorandazza]

Did you try selecting a three-member panel?

I'm still not clear on how you see bias there. I'm not saying it isn't there, but if the panelist represents Microsoft, that might show bias if the domain is alleged to be infringing on Microsoft's marks. But if Microsoft "sells to" the complainaint, I guess I don't know what that means. Sells what?

[domaingenius]

Originally Posted by marcorandazza

Did you try selecting a three-member panel?

I'm still not clear on how you see bias there. I'm not saying it isn't there, but if the panelist represents Microsoft, that might show bias if the domain is alleged to be infringing on Microsoft's marks. But if Microsoft "sells to" the complainaint, I guess I don't know what that means. Sells what?

Marc

I only selected a sole panelist unfortunately. The Panelist is an agent for
Microsoft and obtains benefits from sales made by Microsoft to the Complainant
in the matter. He has also for example appeared on same stage as the Complainant, the panelist in his capacity as representative of Microsoft.
In short, the Panelist shows a possible bias towards the complainant since
the Panelist would be cutting his own throat to rule against him.
He also has arranged a forum for WIPO funded by the Complainant.
and by Microsoft.

DG

[marcorandazza]

The one thing here that makes me uncomfortable is "He also has arranged a forum for WIPO funded by the Complainant."

My guess is that he probably is not actually biased. Nevertheless, the proper functioning of any tribunal requires both a lack of impropriety and a lack of the mere appearance of impropriety.

I actually would like to see a provider implement a peremptory challenge procedure, whereby at least one panelist can be stricken by each party with or without cause. However, you'll be stuck with whoever you get as #2 unless you can actually show a reason to remove them.

Such a regime would likely shave off the panelists at both ends of the actual/perceived bias spectrum.

[domaingenius]

Marc


Very good comment and totally agree. I did make a big mistake
in not choosing 3 panelists. Had I know that they were
going to choose this AH I would have definately gone for 3.
What were WIPO thinking of to choose the 1 panelist who
looks biased.

DG

Originally Posted by marcorandazza

The one thing here that makes me uncomfortable is "He also has arranged a forum for WIPO funded by the Complainant."

My guess is that he probably is not actually biased. Nevertheless, the proper functioning of any tribunal requires both a lack of impropriety and a lack of the mere appearance of impropriety.

I actually would like to see a provider implement a peremptory challenge procedure, whereby at least one panelist can be stricken by each party with or without cause. However, you'll be stuck with whoever you get as #2 unless you can actually show a reason to remove them.

Such a regime would likely shave off the panelists at both ends of the actual/perceived bias spectrum.

I should add that it was WIPO in my case not NAF ,but then
again "naf" (dont know if that means same in USA
as UK ?) pretty much sums WIPO up. and sorry for hijacking the
thread a bit.

DG

[dvdrip]

The Complainant filed and Additional submission 14 days after my response. 6 days after the panel assignment. Complainant has not yet paid for it so it's not official yet.
I am sure the Panelist will accept it.

I wonder why I even bother with UDRP.
I'll take them all to court and be done with them.

[marcorandazza]

Well, that is one strategy. However, defending a UDRP action is relatively inexpensive. Taking them all to court is going to cost you a king's ransom.

A better strategy might be a defensive audit of your domains, do what you can to protect them in the first place, and perhaps some professional help in your defense actions. A list of domain attorneys is here: http://www.moniker.com/domain-partners.jsp

[ohkus]

Originally Posted by dvdrip

The Complainant filed and Additional submission 14 days after my response. 6 days after the panel assignment. Complainant has not yet paid for it so it's not official yet.
I am sure the Panelist will accept it.

I wonder why I even bother with UDRP.
I'll take them all to court and be done with them.

Is this domain providing revenue? Has it been appraised?

A relatively cheap way to stop this nonsense would be to have a decent lawyer draft up a cease and desist letter saying you will go after them for any lost revenue, attorneys fees, your time and the appraised value of the domain.

[dvdrip]

Originally Posted by marcorandazza

Taking them all to court is going to cost you a king's ransom.

What is the cost? You can PM me if you don't want to say in public.

Also one question I always had was how do NAF or WIPO choose which Panelist gets which case.
Do they pick someone in random? How do they define random?
Do they contact 5 of the available ones and the first to reply gets the case?
Do they first contact the one with the least cases in the past months?
What?
It smells really bad in NAF.

[dvdrip]

I just filed a request to disqualify the selected Panelist.
I found some very interesting stuff about the panelist and NAF.

Panelist had 32 cases as sole panelist. (only 6 defaults etc.)
All wins for complainants with trademarks. 100%.
Only 3 cases were denied and complainant didn't have a trademark.

Do you have a trademark? You can have the domain right away.