Review of the UDRP: do we need it?
I was interviewed today by someone from ManagingIP, a London-based company that wanted my opinion on the proposed UDRP review which has been bandied about by those in the community, both for and against. I’m fairly neutral on the topic, and I’m not sure that I was of much help, but it made me want to dive into the issue in a bit more detail.
Konstantinos Komaitis has a blog where (among other things) he discusses the reasons the UDRP should be reviewed, as he sees it:
In my book, ‘The Current State of Domain Name Regulation: domain names as second-class citizens in a mark-dominated world’, I have identified some issues within the UDRP that contribute to its procedural unfairness. Here is a very quick breakdown:
· The UDRP fails to account for a process that consists of checks and balances and is not consistent with due process;
· The UDRP does not provide incentives, equal for both parties;
· The UDRP promotes forum shopping;
· The panellists associated with the UDRP have mainly a trademark law background;
· The number of default cases is worryingly high;
· The democratic fractions of the UDRP are weak and incapable to resist trademark penetration;
· The UDRP makes arbitrary use of precedent.
Similarly, the UDRP also promotes an inconsistent system, despite the fact that is meant to be uniform.
· The UDRP is based upon the illogical conclusion that all domain name registrations are potentially abusive and harmful and, occasionally, without any distinction or assessment between actual harm and the likelihood of such harm, it has normatively evolved into an inconsistent paradigm;
· The substantive provisions of the UDRP (paragraph 4a) are at best etymologically obscure;
· The bad faith element is open to wide and discretionary interpretations;
· There is no authority responsible for the decisions (good or bad) that come out of UDRP panels.
I’m not sure I understand how the system is not consistent with “due process” (whatever that means). Every registrant contract incorporates submission to the UDRP. Is he arguing that people don’t understand the contracts they are signing? I don’t follow. Likewise on the “incentives” business — what exactly does that mean? Should cybersquatters, which the UDRP was ostensibly enacted to counteract, be “incentivized” to not cybersquat? Maybe we could bake them cookies or send them monthly checks for not engaging in bad behavior. Likewise, I can’t understand how “the number of default cases is worryingly high” should give rise to a reason to review the UDRP, let alone how or what you would change within it to combat this “problem.” You can’t force someone to respond, neither can you force a complainant to wait around for a year while the matter is pending some response (likely from someone who wouldn’t respond anyway, as they know they are in the wrong).
Now, some of his points are well taken. Particularly in the early days of the UDRP, there were lots of inconsistent decisions. Sometimes there still are decisions that I’ll call “head-scratchers.” But on the whole, I think the decisions have been moving towards being more uniform as the system of precedent has evolved over time. Of course, there’s no mechanism within the UDRP itself to treat its decisions as precedent, but that’s sort of how things work de facto. I think that’s a good thing. I don’t understand why Prof. Komaitis wants UDRP panels to not use prior decisions as precedent, indeed, to argue that position seems to me to introduce more uncertainty for everyone.
Still, I don’t see the harm in reviewing the UDRP. For one thing, certain procedural changes might not be so terrible as the anti-review folks (mainly brand owners) suggest, for example, lengthening the time to respond to 45 or 60 days. Addressing the forum-shopping argument by normalizing the process across all providers is probably another such point, but that would require more top-down control from ICANN over the UDRP arbitration providers, which it seems uninterested in doing. There could certainly be clarity introduced into the language of the UDRP; personally, I think I’d recommend something along the lines of WIPO’s Overview of Select UDRP questions 2.0. And adding a statute of limitations and some form of internal appeals process would also be helpful.
I’ll note that all of these changes will probably generate more work, and fees, for practitioners. I’ve got kids to feed and clothe, too, ya know. But Ari Goldberger and John Berryhill, both renowned for their representation of domain owners, both suggested in the May UDRP webinar that they thought the UDRP worked pretty well and didn’t need a review. I agree that I think it works pretty well, whatever its flaws might be, but I also don’t see what the big deal is about having a review process. So I suppose you could put me down as a “why not?” vote for UDRP review. I’m sure that opens a big can of worms, so I’ll sit back now and wait for the fireworks (or the crickets, depending on if anyone actually cares).
Tagged ICANN, lawyer stuff, NAF, WIPO