Muscovich says

“The National Arbitration Forum has provided years of service in trademark and domain name disputes. Greater transparency is required in order to explain the concentration of cases amongst certain panelists. ICANN should revisit the Rules and require that panel appointment is always random. Otherwise, there will be an apprehension of an unfair process amongst some observers and stakeholders who believe that the selection of the panellist is of paramount importance and has a substantial likelihood of affecting the outcome of cases. To increase discussion of these and other domain dispute issues, we have created a free sign-up to receive daily NAF Case Update so that you can receive daily notices of new NAF decisions.”

They have compiled statistics which we hope will provide the domain name dispute community with an idea of the approximate participation levels of all NAF Panelists.

Link: http://www.prnewswire.com/news-releases/new-report-domain-name-dispute-stats-reveal-concern-over-panelist-appointment-88825337.html

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.

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.

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.

If you traveled to Vancouver for the ICANN Annual Meeting, you might have also seen representatives from Overstock.com giving away “O” hats. Overstock had previously written to ICANN in support of the release of O.com. ICANN has also received a letter on the release of K.com.

If single letter domain names are to be released, I’d like to see more information on how these names are going to be made available (via auction, first come, first served release, select reservation or other methods). Companies are already claiming trademark rights in domain names that have yet to be made available.

Today, the story has been picked up in a number of publications.

EU Backs Plan For .kid TLD (TheRegister) – Sept. 8
Redux: European Parliament Proposes .kid Internet Domain (CircleID) – Sept. 8
EU Proposes .kid Domain (AustralianIT) – Sept. 8