The Uniform Domain Name Dispute Resolution Policy Legal Information Site

The Social Science Research Network has a new title listed called “The Chronicles of Electronic Commerce: Reverse Domain Name Hijacking Under the Uniform Dispute Resolution Policy” by Zinatul A. Zainol.

The Abstract:

Reverse Domain Name Hijacking is a unique concept under the Uniform Dispute Resolution Policy. Its main purpose is to protect domain name registrants against unjustified claims of overreaching trademark rights by allowing domain name registrants, in some limited circumstances to retort against trademark owners.

Looks interesting…

UPDATE 02/18/2010 12:47pm: We have confirmed these findings to be correct.

It has often been asserted by trademark holders that the new round of gTLDs will have a major and catastrophic financial impact on brands.

But beyond these alarmist statements, is there any empirical evidence to either back this up, or to prove it false?

After examining all UDRP cases done by WIPO and the NAF, sorted by TLD, the evidence shows that new gTLDs play a very minor role in UDRPs, and that to the extent that a TLD matters, .com more prone to infringement than other, newer gTLDs. Infringements, as measured by UDRPs filed (regardless of outcome), show that infringement broadly correlate to the number of domains registered in a TLD zone, and not to the newness or recency of a TLD.

The study also predicts that if 300 new TLDs were created (an estimate made by several observers, including ICANN), there would be 316 new additional UDRPs filed. When combined with the new Uniform Rapid Suspension provisions that will be required for new gTLDs, these cases would result in a total additional cost to trademark holders of $869,000, or less than $.10 per trademark registered worldwide.

The data shows that, for enforcement via UDRP and URS, assertions that brand holders would be faced with enormous costs have been substantially overestimated.

Read the study.

Hard copy notice to respondents in UDRP proceedings will become a thing of the past shortly, based upon a change that was voted into effect at the Seoul ICANN meeting last October.

From the icann.org website:

On 30 October 2009, the ICANN Board approved a modification to the Implementation Rules for the Uniform Domain Name Dispute Resolution Policy (“Rules”). The modified Rules now require UDRP claimants and respondents to provide documents to UDRP Providers in electronic form. The modified Rules also change UDRP Provider obligations in forwarding hard copy notice to respondents in UDRP proceedings: the original Rules required Providers to forward a hard copy of the UDRP complaint; under the new Rules, Providers do not have to forward a hard copy of the entire complaint. Providers are now only required to forward a hard copy notice that a UDRP complaint has been filed.

The modified Rules will become mandatory for all UDRP proceedings filed on or after 1 March 2010.

The requirements to file will change, and some providers may already allow this now.

Until 1 March 2010, UDRP Providers may elect to follow the hard copy notice (without complaint) requirement as set forth in the modified Rules. For all UDRP proceedings filed on or after 1 March 2010, all UDRP Providers must follow the updated requirements. At that time, even if a UDRP Provider’s supplemental rules contain provisions conflicting with the modified Rules, the modified Rules will guide the proceedings.

Providers may allow, but must not require, UDRP complainants and respondents to submit complaints and responses in electronic form prior to 1 March 2010. For all UDRP proceedings filed on or before 28 February 2010, complainants and respondents may elect to submit their documents in hard copy form, as set forth in the original Rules.

Elliot Silver, a well known and respected entrepreneur in the domain industry, recently compiled a list of the key domain name attorneys on his blog.

Understanding UDRP, and responding are some very important matters. Always best when in doubt to consult an attorney, and the list Elliot and the commentors have compiled is a great resource.

Are there standards which UDRP Panelists are held to?  Is there protection and balance built in to the system that protects both complainant and respondant?

Sure, if a person loses their domain name, no matter the circumstances, it might be expected to hear a cry of foul or vent about it not being fair or being weighted against the respondant.

One might want to initially dismiss these claims, but unfortunately the patern is that more and more frequently there are cases that the panelist appears to be on complainant autopilot.

Case in point.  In Andrew Alleman’s article today on Domain Name Wire entitled UDRP Arbitration: A Case of Laziness? he describes circumstances of some questionable tactics both by the claimant’s selective omissions of activity and a perception of the panelist’s bias that is hard to argue with.

Another panelist has been showing a pattern of finding for the complainant under questionable circumstances, and even in the presence of irrefutable dissent and presence of pattern reverse hijacking on 3 party panels.

Filing UDRP is largely done by intellectual property interest.  There are clear cases and not so clear cases.

Is it the absence of financial consideration that makes panelists operate in a mindset where volume makes up for the fees involved?  Rushing does not improve quality or balance, at least not for the average domain name owner who is challenged with the loss of their domain name while also being hassled with the legal fees and other costs of defense.

Although statistically the percentage of filings versus the number of domains registered has been a declining number, a growing number of UDRP are filed where the complainant is awarded the domain name.  Read this to mean that I am implying the system is broken and biased towards trademark and big business interests.

Built in to the IRT (authored largely by the intellectual property interests that are using the UDRP system to retrieve domain names from registrants) are provisions for an accellerated process for ‘clear cases’, where the filing costs are lower (as little as $2/name).

There is merit to getting illegal activity taken offline as quickly as possible, such as phishing.  Unless there is a balanced component to this new process, panelists who might be statistically inclined to find for the complainant would with greater frequency be sought for these accellerated proceedings.

If unchecked, any bias, when mixed with the low cost per name would drive volume decisions that could have further skew of balance.

We’re back and better than before.  We’ll have commentary from noted experts in the field of domain name law as well as panelists (and I am sure comments from the public) as we re-launch UDRPLaw.net.

-The Anonymous Coward Admin
(hiding behind privacy whois)

I have been operating a UDRP-related website since January 2001, first through UDRPlaw.net, and for past year, through this blog. 

I have enjoyed running both sites, providing a helpful resource on the Internet for domain name disputes, ICANN issues and information on Internet governance. When I first planned UDRPlaw.net back in 2000, there were no other resources available on the Internet providing the same service. Since then, many resources have become available, in a number of languages, from interested Internet users worldwide. I recommend Bret Fausett’sICANN blog, Marty Schwimmer’s Trademark Blog, Cedric Manara’sNom de Domaine and Circle ID.

Fortunately, the experience gained from running the sites, handling UDRP cases and writing about ICANN has opened some new doors and provided me with a great opportunity. I am looking forward to the fresh start.

This is my last post on this blog. I’ll be surfacing again in the next couple of weeks in another location. I am not leaving the Internet, so I will be seeing some of you soon. Thanks for reading.

According to the Board agenda for February 21, Sao Paulo, Brazil has been designated as the location for the 2006 ICANN Annual Meeting. The meeting is tentatively scheduled for the first week of December. Brazil served as host of the March 2003 ICANN meeting.

When Latin America comes up on the rotating schedule again in 2008, Mexico would make a great location for an ICANN meeting.

The 2007 schedule includes meetings in Europe, North America and Asia. My wish list: Barcelona in March, New York in June, and Korea in October.

In today’s blog post, Bret Fausett notes that a location for the October 2006 ICANN meeting has not yet been published. He also makes a plug for an ICANN meeting in Mexico. This is a great idea. Way back on April 8, 2005, I made a similar recommendation on this blog for Merida, Mexico. Even if the meeting is held in a different location in October, Mexico would be a good candidate for a future meeting.

At the ICANN Annual Meeting in Vancouver, the Government Advisory Committee launched a Public Forum section on the GAC website. To date, there have been only been four comments posted to the Public Forum, all by ALAC members, none by GAC representatives themselves. The last comment was posted on December 17, 2005.

According to the introductory note from GAC Chair Mohamed Sharil Tarmizi, “I encourage the Internet community and the general public, world-wide to make use of their GAC representatives and to work with us, as part of the ICANN process, to facilitate the development of a comprehensive international public-private partnership in this important area of management of the global Internet infrastructure.”

The Wellington meeting is fast approaching. It would be beneficial for all interested parties if GAC representatives and members of the Internet community were making greater use of the GAC Public Forum.