By Zak Muscovitch.

I took a look at NAF decisions so far, for this month of September, 2013, and have made some interesting, but not surprising, observations. When a Respondent defaults by failing to file a Response, the NAF nearly always appoints one of a very select group of panelists. That means that there is group of very experienced NAF panelists, nearly always gets the usually easy and lucrative cases.

NAF has 134 panelists on its roster, but has apparently focused its "active" roster to only a select few. With very few exceptions, it is these select panelists which get nearly every default case. So, if you are a complainant, you could nearly "count on" one of the following panelists hearing your case.

Sandra Franklin is the NAF's "go to" panelist these days, according to the September statistics. She decided a total of about 9 cases that were released so far in September. Terry F. Peppard (8 cases), John J. Upchurch (7 cases), and Paul M. DeCicco (6 cases) came in a very close second and third place, respectively.

After that however, the group's cases got a lot thinner, with James A. Carmody (4 cases), Carolyn Marks Johnson (4 cases), Debrett G. Lyons (4 cases), Tyrus Atkinson, Jr. (3 cases), Karl V. Fink (3 cases), David A. Einhorn 2 cases), Bruce Myerson (2 cases), Charles McCotter, Jr. (2 cases), Neil Anthony Brown (2 cases), and Darryl C. Wilson, Houston Putnam Lowry, and Bruce Myerson (each with 1 single case).

Accordingly, out of the 134 Panelists, it certainly appears that (at least currently based upon September, 2013 stats alone), about a dozen UDRP panelists do the lion's share of work for the NAF.

There is a good argument for using a handful of the most "experienced" panelists to decide cases, as ostensibly the most experienced panelists are the most "able" and "reliable". On the other hand, one cannot but wonder why having a roster of 134 panelists is then necessary at all, considering that most of these panelists are not usually selected at all, except when a case is defended and panelists are nominated by the parties.

Interestingly, two recent default decisions that have attracted some criticism recently, namely the case and the case, were of course decided by two of the above-mentioned select panelists, i.e. Terry F. Peppard and Carolyn Marks Johnson, respectively. Nat Cohen wrote an interesting piece, about the case, and Michael Berkins covered the case on

Under the UDRP, when a domain name registrant fails to defend the proceeding by filing a Response, the panelists are not supposed to give the complainant an automatic "win" or "default judgment", as is the case in many court proceedings. Nevertheless, when a party does not defend, certainly a panel is entitled to make adverse inferences and to rely upon only one side of the story.

"Default cases" are the most common type of UDRP case, and the panelists who hear these cases serve a very important function. I am always impressed by panelists who write thoughtful and comprehensive decisions in default cases, as it shows that they take their work seriously, and that they have avoided the obvious temptation to disregard a party since they have shown disinterest in the proceeding by failing to respond.

Below is a simple chart of the default case distribution so far this month of September, 2013.

# of Cases
Sandra Franklin
9 etc. etc. etc.
Terry F. Peppard
John J. Upchurch
7 etc.
Paul M. DeCicco
6 etc.
Carolyn Marks Johnson
James A. Carmody
Debrett G. Lyons
4> etc.
David A. Einhorn
Bruce E. Meyerson
Charles K. McCotter, Jr.
Neil Anthony Brown QC
2 etc.
Hon. Karl V. Fink
Darryl C. Wilson
1 etc.
Houston Putnam Lowry
Bruce Myerson


Just heard from the National Arbitration Forum that my clients won a great domain name dispute over GROOVLE.COM. Google had complained that my clients were “cybersquatters”. The unanimous three distinguished three member panel disagreed. You can read the decision here.

Congrats to! This was one of those rare UDRP cases where the Panel didn’t even have to consider the second and third prongs of the three-part UDRP test (legitimate interest and good faith registration and use). The Panel deserves a lot of credit here for being decisive in its appreciation for the substantial difference between Google and Groovle. As a UDRP lawyer, I can say that this was a real groovy case, and only the second case that Google ever lost; the first one was…

Yet another case of someone going to court to get the ID's of anonymous emailers/bloggers/posters. I was interviewed on CBC's The National on one of these cases.

This is starting to be a regular occurance...

It may start happening so much that Google establishes its own "court system"...all online...

Would be like an ICANN arbitration  over a domain name dispute at the National Arbitration Forum or WIPO. I think it would work and would save them a lot of money and headache by avoiding going to court in many cases...

Domain name lawyers are used to this kind of arbitration for online legal issues, and I could see how a domain name attorney could easily adapt to this kind of Internet law case.