NAF loses UDRP market share again

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.

WIPO releases 2011 cybersquatting stats

WIPO handled more UDRP cases covering more domain names in 2011 than in any other year, but its numbers do not paint a very convincing picture of the cybersquatting landscape.

The organization today announced that it handled 2,764 UDRP cases covering 4,781 domain names last year. The number of cases was up 2.5% over 2010.

The number of domain names covered by these cases was up by 9.4% – an additional 414 domains.

It’s basically meaningless data if you’re looking to make a case that cybersquatting is on the increase.

Obviously, while WIPO is the market-share leader, it is not the only UDRP provider. It sees a representative but non-exhaustive sample of cases.

While UDRP is the standard dispute mechanism for all ICANN-contracted gTLDs, WIPO also has side deals with ccTLD registries to look after cybersquatting cases in their zones.

As WIPO has added more ccTLD deals, it has become harder to make apples-to-apples comparisons year over year.

Based on WIPO’s own records, it received 2,323 UDRP complaints about domains in gTLDs last year, up by 28 cases from 2010, a 1.2% increase.

Given that the number of domains registered in gTLDs increased by at least 8% between January 1 and November 30 2011, cybersquatting seems to be actually on the decrease in relative terms.

And given that the number of UDRP cases filed is so piddlingly small, a single obsessive-compulsive complainant (ie, Lego) can skew the results.

Lego spammed WIPO with more than 160 complaints in 2011. As a result, Denmark is the last year’s fourth-biggest filer after the US, France and UK, according to WIPO, with 202 complaints.

So, if you see any company using these WIPO numbers to rage about cybersquatting in press releases, ICANN comments or Congressional hearings, give them a slap from me. Thanks.

Here’s a table of WIPO’s caseload from 2000 to 2011.

Sadly, the number of UDRP complaints will never reflect the actual amount of cybersquatting going on, particularly when cybersquatters only need to price their domains more cheaply than the cost of a UDRP complaint in order to stay off the radar.

WIPO’s data does raise some interesting questions about the geographic distribution of complainants and respondents, however.

Unsurprisingly, cybersquatting was found to be big business in China, the second most-common home nation, after the US, for respondents. No UDRPs filed with WIPO originated there, however.

Surprisingly, Australia is ranked fourth on the list of countries most likely to harbor alleged squatters, with 171 respondents. But Australia was 13th in terms of complainant location, with just 39 cases.

Read more WIPO data here.

ICA demands probe of “shoddy” UDRP decisions

The Internet Commerce Association has called for an ICANN investigation into the National Arbitration Forum’s “seriously flawed” record of UDRP decisions.

The demands follow two recent NAF cybersquatting cases thought to be particularly egregious.

In the first, Hardware Resources, Inc. v. Yaseen Rehman, the domain hardwareresources.org was transferred based on a trademark that explicitly denounced rights to the term “hardware resources”.

In the second, Auto-Owners Insurance Company v. Nokta Internet Technologies, NAF allegedly broke from standard UDRP procedure when it handed autoownersinsurance.com to the complainant.

Both were cases of potentially valuable generic domains being lost, and both were recently singled out by IP attorney Paul Keating as being particularly dubious decisions.

The ICA represents some big domainers and some of the big domaining registrars. Its counsel, Phil Corwin, wrote to ICANN yesterday to demand a review of NAF’s practices:

NAF’s administration of the UDRP in the cases cited above appears to be seriously flawed and creates the appearance of substantial bias and ineptitude. ICANN has a responsibility to make serious inquiry into this matter and to take remedial action based upon its findings.

According to Corwin, there’s circumstantial evidence that NAF encourages “forum shopping” due to its habit of appointing a small number of adjudicators known to be friendly to complainants.

Regular readers of DomainIncite and other domain industry news blogs may have noticed that when we report incredulously about UDRP decisions, it’s usually with reference to NAF cases.

Corwin’s letter comes as part of a larger ongoing campaign by the ICA to get ICANN to sign formal contracts with its approved UDRP resolution providers, which it lacks today.

First .xxx cybersquatting complaint filed by porn site

The new .xxx top-level domain has seen its first cybersquatting complaint filed by a porn site.

The registrant of the domain femjoy.xxx was hit by a UDRP complaint in with the World Intellectual Property Organization late last week.

FemJoy.com is a well-known “artistic nude” porn site, according to the adult industry trade press.

While there have already been 12 UDRP cases filed against .xxx registrants, the previous cases have all been filed by the owners, such as banks and retailers, of non-porn trademarks.

The femjoy.xxx case appears to be the first instance of a cybersquatting complaint filed by a porn site.

Complainant Georg Streit has owned a US trademark on “FemJoy” – covering “magazines and periodicals featuring photographs and images of landscapes and human bodies” – since 2007.

The registrant of femjoy.xxx is an Australian called Tu Nguyen, according to Whois records. The domain does not currently resolve. In fact, it doesn’t even have name servers.

Manwin files its first cybersquatting complaint

Manwin Licensing, the company currently suing ICANN and ICM Registry claiming .xxx breaks US competition law, has filed its first cybersquatting complaint using the UDRP.

It’s over a .com domain, pornhubarchive.com (don’t go there, not only is it NSFW but it also looks like it panders to some very dubious tastes), which Manwin thinks infringes on its rights to the PornHub name

The domain is registered to a Russian, while pornhub.com itself is protected by Whois privacy.

There’s a certain irony here. PornHub is a “tube” site that allows users to upload content and has itself come under fire for violating intellectual property rights in the past.

It was sued by the the porn production company Pink Visual for copyright infringement in 2010.