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NAF loses UDRP market share again

Kevin Murphy, April 4, 2012, 22:56:19 (UTC), Domain Policy

If UDRP forum shopping is a real phenomenon, the market share statistics don’t bear it out.

The National Arbitration Forum today announced a sequential decrease in the number of cybersquatting cases it handled in 2011, widening the gap between itself and the World Intellectual Property Organization for at least the second year in a row.

NAF said it handled 2,082 complaints last year, down 4% from 2010. That’s over the same period WIPO saw a 2.5% increase to 2,764 cases.

NAF is occasionally accused of being the more complainant-friendly of the two major UDRP dispute resolution providers, which some say encourages “forum shopping”.

While that may or may not be true in certain fringe cases, it’s certainly not helping NAF win a flood of business. WIPO is still handling more cases, and growing its share while NAF’s shrinks.

As Mike Berkens observed over on The Domains, NAF’s press release attempted a bit of lame spinning, comparing 2011 to 2009 in order to lead with an 18% increase stat.

The release also includes the following quote from director of internet and IP services Kristine Dorrain, which seems to be designed to subtly address the “complainant-friendly” allegations.

Our experience tells us parties, particularly domain name registrants, prefer the National Arbitration Forum because documents are easily accessible in our online portal. Complaint or Response filing is accomplished in just a couple of minutes.

It’s a somewhat irrelevant statement, given that it’s the complainant who gets to choose the venue.

One of NAF’s 2011 highlights was being picked as exclusive provider of Rapid Evaluation Service cases by .xxx manager ICM Registry. It processed 10 RES complaints in 2011.

RES cases, as well as 73 .us cases, were counted in its headline statistics.

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Comments (8)

  1. Philip Corwin says:

    UN agency WIPO just got tagged for violating the UN sanctions against North Korea —

    http://www.foxnews.com/world/2012/04/03/exclusive-cash-for-computers-is-un-busting-its-own-sanctions-in-north-korea/?test=latestnews

  2. WIPO? North Korea? says:

    I doubt that there’s any real connection. Just showing off their tabloid chops at the expense of WIPO (and their readers).

  3. Nat Cohen says:

    I draw a different conclusion from the data.

    Forum shopping is a reality – if you are a complainant’s lawyer, and you believe that one forum is more advantageous than another, then you will pick the most favorable forum. You may even believe that you have an ethical obligation to your client to select the most favorable forum.

    As you know, years ago forum shopping was the reason given by eResolution for why it quit handling UDRPs – because once WIPO gained the reputation for being complainant friendly, it got all the business from Complainant attorneys:

    http://www.theregister.co.uk/2001/12/04/eresolution_quits_domain_arbitration/

    The conclusion could be instead that WIPO is seen as equally Complainant friendly as NAF, and is winning market share for other reasons. WIPO’s press releases touting their high rate of domain transfers:

    “87% of the panel decisions ordered the transfer of the domain name(s) to the complainant ”

    certainly doesn’t hurt the impression that they are complainant friendly.

    • Kevin Murphy says:

      If WIPO and NAF are perceived as being *equally* complainant friendly, as you state, then surely forum shopping would be pointless.

      That said, I don’t doubt that complainants’ lawyers will often behave in the way you describe.

  4. John Berryhill says:

    There are a lot of factors in play, so it’s hard to isolate any one that might account for the market shift. It would be interesting to see if there are regular UDRP complaint filers who have moved from one to the other.

    The point Ms. Dorrain makes about ease of filing is valid to an extent. NAF has an online document upload feature that makes it pretty simple to confirm that a filing has been made. WIPO receives documents by email, and given the vagaries of various email systems, there’s something of a nagging doubt about whether your files were received until receiving human confirmation the next day (which, in a deadline sensitive environment is a minor psychological inconvenience).

    The fee structures are slightly different as well. At NAF, a complaint is $1350, but if the parties agree to an extension, or if the parties submit additional filings, the cash register rings a few more times in $250 increments.

    However, WIPO has an inadvertent fee surprise for the complainant if the respondent requests a three member panel. Because half the WIPO three-member panel fee is $500 more than the initial filing fee, a complainant’s attorney (who likely already estimated and billed for the filing) has to chase down the client for an additional $500 if the respondent chooses a three-member panel. Given the billing rates of IP attorneys, that chews up attorney time on top of the $500 about which possibility the client was probably not advised in the first place. WIPO has been historically generous in waiting for that $500, leaving cases in limbo for a month or more.

    Then again, the NAF has been known to drive complainants to insanity by a peculiar insistence on formalities such as the case title, before proceeding to transmit the case to a panel. These peculiarities seem to change from time to time. For example, if you name the “registrant” as the respondent, sometimes the NAF will require amendment to “registrant c/o admin contact”, and sometimes they won’t. Likewise, NAF will insist on amendment of the case caption when the registrar discloses privacy whois data. In contrast, WIPO will “invite” the complainant to make minor formal changes, but still forward the case to a panel along with the information received from the registrar in response to the registrar confirmation email.

    Once a filer has gotten used to the NAF’s quirks, then robo-filing of the type done by Citizenhawk is fairly simple. But some practitioners, having sunk significant attorney time into addressing what they view as procedural nitpicking by NAF, conclude that WIPO provides a better overall value despite the difference in initial filing fee (which comes out to less than an hour of attorney billing time that the NAF would otherwise consume).

    Customer support is also an issue. If there is a procedural problem, it is much easier to get a live human on the telephone at WIPO for minor procedural issues than at NAF. It’s not clear whether NAF case managers are working five day weeks or telecommuting for some days anyway, and they’ve adopted the annoying “first name” thing so that you can’t navigate their voice mail system unless you remember the last names of the case managers from before they went into the witness protection program.

  5. John Berryhill says:

    Another convenience factor is that, since these are international proceedings, with WIPO you can work somewhat normal business hours and not worry about what time it is in Minneapolis. Consistent with UDRP Rule 2(f), WIPO properly deems documents “sent” when sent from your time in your time zone. Having one time sent a response from New Zealand into “yesterday” MN time, I was afraid I would rip a hole in the space-time continuum.

    On the other hand, one of the most maddening features of the UDRP is that responses are always due on a Sunday through Thursday. The 20 day response time, and the M-F workweek means that cases commenced on a Monday are due on a Sunday. WIPO and NAF deal with this in completely different ways. WIPO used to accept Sunday filings on Monday, but did not document the practice, which then changed a few years ago without notice. NAF moves all weekend and US holiday deadlines to the next business day – ah, but remember, that’s the “next business day as measured in Minneapolis time”.

    The “best in class”, though, is the ADNDRC. Because they have an office in Beijing, then any proceeding managed from their Beijing office is subject to email filtering by the PRC firewall. This had an utterly brilliant result in a proceeding where I represented a client whose domain portfolio included some politically-sensitive names. While those names were not in dispute, the client’s server was blacklisted for outbound email from China. Consequently, there were some serious notice issues, and the ADNDRC staff had to pretend they didn’t understand why someone could possibly not get email messages from China.

    Now, one would think, that in accrediting dispute resolution providers in a procedure that raises due process concerns, that a provider situated in a place which expressly filters internet traffic would be a fundamentally stupid thing to do, since there is no assurance that notice requirements can be met. ICANN, frankly, couldn’t give a shit.

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