Our goals are for a UDRP that is CLEAR, CONSISTENT, and FAIR. Currently the way the UDRP is implemented meets none of these criteria.
Problems are:
1. Inconsistent interpretations.
Panels have widely divergent views on how to interpret the UDRP and will look at the same set of facts and arrive at opposite results.
2. Rogue panelists.
A disturbing number of panelists view their position of authority on an arbitration panel as an opportunity to take an activist role to redress what they perceive as illegitimate speculations in domain names. They will override the clear language of the UDRP and rely on tortured, convoluted logic to arrive at a conclusion that results in ordering the transfer of a domain from its registered owner.
3. Forum Shopping
NAF and WIPO are competitors licensed by ICANN to offer arbitration services. Their customers are the Complainants who are the ones who select the venue and pay the fees for a one-person panel. NAF and WIPO have a financial incentive to be the most attractive venue for Complainants. They tout their success rate in turning domains over to Complainants and offer seminars on how to succeed at a UDRP. NAF and WIPO also hand select the people accredited as panelists and have tremendous influence over which arbiters are selected for specific panels. Now the Czech Arbitration Court has joined the list of groups providing arbitration services and has started a price war that further undermines the legitimacy of the UDRP process.
4. Choice of Arbiters
Which leads us to notice that most arbiters are trademark lawyers who have spent their careers being paid by and enforcing the trademarks of the same type of companies who appear before them as Complainants. Worse yet, many of these arbiters are still active as trademark attorneys and will represent Complainants in UDRP proceedings in front of the same panelists with whom they recently served on a panel. While serving as panelists they have the opportunity to write decisions that will support the arguments they bring as attorneys for Complainants in future UDRP actions.
Imagine if lawyers were able to moonlight as judges, write decisions, and then return to practice where they could cite their own decisions in arguments before their occasional colleagues on the bench.
5. Disproportionate penalties and risks
The most the Complainant risks is the cost of the filing and the expense in preparing the complaint. The Respondent can have at risk a domain name in which it has invested tens of thousands of dollars.
A domain owner can, and has, lost a domain due to an inadvertent link placed by a third-party after years problem-free registration, or even due to having no web site at all. Imagine a magazine that has been publishing for 10 years when a contributor submits an article that plagiarizes an author’s content. The analogy would be if the author could go before a single-panelist and be awarded ownership of the magazine because of this one slip-up. Sounds outrageous yet domain transfers regularly are ordered for similarly flimsy reasons in UDRP proceedings.
On the flip side, some Complainants abuse the proceedings and engage in blatant bad faith efforts to induce the transfer of a domain. What do they risk? The panel can determine that their complaint was an attempt at ‘Reverse Domain Name Hijacking’. What else happens? What is their penalty? Do they pay the legal costs of the response? Are they forbidden from filing another Complaint? No, nothing else happens. It is a meaningless slap on the wrist with no consequences.
The domain owner faces severe jeopardy where a minor slip up can result in the loss of an asset owned for over a decade and with a generic value of tens of thousands of dollars. The complainant has huge upside as they can be awarded a valuable domain without having to compensate the owner, and they face no penalty no matter how slimy their behavior.
The system is set up to encourage frivolous UDRP filings. Will NAF and WIPO try to fix the system? Why should they – every filing no matter how frivolous is more money in their pocket.
More Reading
Domain Name Wire: 4 Ways to Reform UDRP Now
Carolyn Marks Johnson, a panelist notorious for apparent Complainant bias, has been sued for Judicial Misconduct
