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.

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.

IGOs plead for special new gTLD protections

Twenty-eight intergovernmental organizations, including the UN, ITU and WIPO, have asked ICANN for special protection for their acronyms in the new top-level domains program.

A letter sent to ICANN earlier this week and obtained by DI, reads:

we formally request ICANN to make provision for a targeted exclusion of third party registrations of the names and acronyms of IGOs both at the top and second level, at least during ICANN’s first application round and until further appropriate policy could be developed.

It goes on to claim that fighting abusive domain registrations and enforcing rights diverts funds from causes such as famine relief, scientific research and children’s rights.

For the sake of brevity, this is the list of the letter’s signatories in acronym form only: AfDB, EBRD, ESO, CERN, ESA, IADB, IAEA, IFAD, ILO, IMO, IMF, IOM, ITU, NIB, NATO, OECD, OPCW, UN, UNESCO, UNIDO, UPU, WB, WHO, WIPO, WMO, UNWTO, and WTO.

The letter justifies its request by citing the rights given to IGO names under the Paris Convention for the Protection of Industrial Property.

It’s a pretty flimsy argument. The Paris convention does not give IGOs exclusive rights to strings. It may protect the World Bank abbreviation WB, for example, but not to the extent that Warner Brothers can’t also use it to market movies.

The letter also cites ICANN’s Governmental Advisory Committee, which called for IGOs to be protected in its March 2007 GAC Principles regarding New gTLDs advice.

The Principles, however, talk about IGOs in the same breath as regular trademark owners, which is exactly how the new gTLD Applicant Guidebook treats them today.

There is some ICANN precedent for giving in to this kind of special pleading, however.

The latest Guidebook makes several dozen trademarks relating to the Red Cross, Red Crescent and Olympic movements “ineligible for delegation” as gTLDs, but offers them no second-level protection.

It was noted at the time the decision was made – at the behest of the GAC – that giving the Olympics special treatment would create a slippery slope to a full-blown Globally Protected Marks List, a concept ICANN has already rejected.

The UN et al only really have a shot at getting what they want if they can get the GAC on side, and several influential GAC members have already stated that the Olympic/Red Cross case was unique.

I think the response from ICANN will be a letter from president Rod Beckstrom politely declining the request and inviting its signatories to participate in the ICANN community.

Over 7,500 .uk cybersquatting cases heard

Nominet is celebrating the 10-year anniversary of its Dispute Resolution Service this week, saying that it has settled over 7,500 cybersquatting cases.

Based on a £15,000 estimated cost of legal action, the .uk registry reckons DRS has saved companies about £110 million ($176 million) over the last decade.

DRS has similarities but differences to UDRP. Notably, DRS has a formal mediation phase and an appeals process for registrants who believe their domains were wrongly taken from them.

The .uk zone currently has fewer than 10 million registrations, compared to the 135 million gTLD domains to which the UDRP applies.

WIPO and the National Arbitration Forum have settled about 35,000 UDRP complaints over the last decade. With that in mind, cybersquatting enforcement in .uk appears to have been relatively heavy.