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UDRP reform put on hold for four years

Kevin Murphy, December 20, 2011, 11:55:41 (UTC), Domain Policy

ICANN’s cybersquatting rules, including the Uniform Dispute Resolution Policy, will be reviewed and possibly reformed, but probably not until 2016 at the earliest.

The Generic Names Supporting Organization Council voted last Thursday to put the start of UDRP reform on hold until 18 months after the first new top-level domains go live.

The review will also take into account other cybersquatting policies including Uniform Rapid Suspension, which will be binding on all new gTLD registries but has yet to be be tested.

This is the relevant part of the resolution:

the GNSO Council requests a new Issue Report on the current state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to, the UDRP and URS, should be delivered to the GNSO Council by no later than eighteen (18) months following the delegation of the first new gTLD.

An Issue Report is compiled by ICANN staff and often leads to a Policy Development Process that creates policies binding on registries, registrars and ultimately registrants.

Because the first new gTLDs are not expected to be delegated until the first quarter of 2013 at the earliest, the Issue Report would not be delivered until half way through 2014.

After ICANN public comment and analysis, the GNSO Council would be unlikely to kick off a PDP until the first half of 2015. The PDP itself could take months or years to complete.

In short, if UDRP is going to be reformed, we’re unlikely to see the results until 2016.

The Council resolution, which was in line with Governmental Advisory Committee advice, was proposed by the registries, following many months of ICANN public outreach and discussion.

Non-commercial users in the GNSO were most strongly in favor of an accelerated timetable, but a request to reduce the 18-month breather to a year failed to find support.

The Intellectual Property Constituency had proposed an amendment that would have kicked off the process after 100 UDRP and 100 URS cases had been heard in new gTLDs, rather than after a specified time, but the motion was defeated.

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Comments (2)

  1. Philip Corwin says:

    This is a sad day for all domain registrants who want a more predictable and consistent UDRP administred by impartial arbitrators under enforceable contractual obligations.

    The UDRP is the only significant ICANN policy that has never undergone review. While registrants provide the bulk of the revenues that sustain ICANN, their rights are seldom acknowledged, much less honored.

    The GNSO and ICANN staff have acquiesced to a GAC that has been thoroughly misinformed by trademark interests and their lobbyists. Their stated reason for opposing UDRP review at this time — that the mere process would be destabilizing to the DNS – is absurd on its face.

  2. Nat Cohen says:

    Over 10 years in, it is clear that the procedures of the UDRP are seriously flawed and need reform. The current version of the UDRP results in decisions that are anything but uniform.

    ICANN has completely abdicated its role to ensure a uniform and consistent application of the UDRP. The UDRP has been left open to interpretation by various Arbitration Dispute Providers (ADRs) and panelists. Those entrusted to apply the UDRP have fragmented into multiple, incompatible schools of thought as to what is permitted or not permitted under the UDRP, resulting in a UDRP process that more closely resembles a trip to a casino that a clear, predictable, judicial process.

    The rotten core at the heart of the UDRP is that it encourages Forum Shopping, as the Complainant selects the ADR to hear the case. The ADRs have every incentive to please the Complainant, and to make the process adverse to Respondents.

    This produces the current situation where ADRs boast about how successful they are at winning domains for Complainants, hold seminars for Complainants to train them on how to file more effective complaints, provide boilerplate language to Complainants to facilitate the filing of Complaints, choose active trademark attorneys who represent Complainants in front of the same forum as neutral panelists while at the same time refusing to accredit attorneys who work primarily with respondents to serve as Panelists, hand pick pro-Complainant panelists for panels a disproportionate amount of time, and adopt minor procedural rules such as time frames for responding to complaints, and lack of clarity about whether supplemental submissions will be accepted that disadvantage respondents.

    We already have a clear example of how supposedly neutral groups, which are in fact revenue seeking organizations, lose their integrity by catering to those who pay their bills, from the financial crisis. Moody’s, S&P, and other rating agencies assigned AAA ratings to junk in order to please the Wall Street houses that paid for the ratings.

    Forum shopping had a corrosive effect on the integrity of the rating agencies. The same thing is happening with the ADRs, whose entire financial incentive is to be seen as more “Complainant-friendly” than competing ADRs.

    Respondents need to have a role in the selection of the ADR. The Complainant and the Respondent should be given the opportunity to mutually agree on a forum, otherwise the forum should be randomly assigned (perhaps market share weighted). This will help preserve the integrity and fairness of the UDRP process.

    For further reading:

    http://domainnamewire.com/2010/03/22/study-shows-million-dollar-domain-arbitrators-and-udrp-bias/

    http://domainnamewire.com/2009/11/30/national-arbitration-forum-provides-shortcut-to-udrp-arbitrators/

    http://directnavigation.com/2010/01/udrp-a-guest-post-every-domainer-must-read/

    http://www.domainarts.com/2011/10/21/my-personal-trainer-registers-sofitdc-com-receives-cd-from-sofitel-sent-by-a-wipo-panelist/

    http://www.domainarts.com/2011/09/05/how-big-a-problem-is-cybersquatting/

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