Gatwick goings-on

There aren't that many WIPO panelists out there who rule more often for respondents than for complainants. (That may have a lot to do with how WIPO screens its panelists to begin with.) I fail to understand the significance of that statement. UDRP complaints are not filed against a random sample of domain names. UDRP complaints are filed against a subfractional percent of domain names where at least someone thinks there is a grounds for a dispute. A substantial proportion of those cases are defaults by the domain registrant. In the majority of cases where the respond (a) responds, and (b) selects a three member panel, the respondent prevails (65% of the time by Milton Mueller's reckoning). I completely fail to understand what the win/loss ratio, apart from any other considerations, says about whether the process is "fair". Guess what? Most criminal juries find the defendant guilty. Does that mean juries are biased? Now, the conclusions about panelist selection may be correct here. But that doesn't justify the use of outstandingly stupid logic.

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Re:Dumbth
by jon on Thursday November 18 2004, @09:54AM (#14452)
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Don’t hold back, John; tell us what you really think. :-) It’s correct, of course, that we can’t reach a conclusion as to whether the process is “fair” merely by looking at the win-loss record, since we don’t know what percentage of complainants would win in an ideal world. The data indicate that complainants win rather less often when they face three-member panels rather than one-member panels, controlling for default rates. Those numbers don’t tell us which of the two processes is more fair; maybe complainants should win more often. In fact, looking at other factors, it’s sensible to conclude that the three-member panel process is more “fair”: that process involves more deliberation and the selection of panelists is not as skewed. We’ve still got no basis, though, for saying that either process is “fair” in an absolute sense. Indeed, we have reason to think neither one is; WIPO panelists are predominantly intellectual property lawyers who, in their day jobs, represent trademark holders. I suggested in the language you quote that that fact may have a lot to do with the overall results of their decision-making. I’ll stand by that.

For what it’s worth, the most recent data I can find indicate that in WIPO proceedings, complainants win 48% of the time in contested, three-member proceedings. Those panelists who rule more often for respondents tend to be ones whom WIPO declines to assign to single-member panels, so the contested, three-member proceedings tend to be the only ones they sit on. The larger point of my story related to the dispute provider’s reluctance to assign its more complainant-friendly panelists to actually hear disputes. One anecdote doesn’t establish that, but Michael Geist’s comprehensive work surely did.

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