WIPO and ICA at odds over UDRP review
The Internet Commerce Association (ICA) has published a document making a series of recommended reforms for the Uniform Domain Name Dispute Resolution Policy (UDRP). The statement takes aim at the management of the process by current providers, as well as the conduct of some panellists – arguing that the emphasis on recruiting from the trademark bar is leading to imbalances in the system.
In 2015, ICANN issued a preliminary issue report to review all rights protection mechanisms in all generic top-level domains, including the UDRP. With the publication of its 2018 UDRP Reform Policy Platform document, the ICA stated that – while content that the UDRP policy itself is generally fair and balanced – there is a need for administrative and procedural reforms, citing “numerous poorly decided UDRP case decisions, an increase in reverse domain name hijacking (RDNH) decisions, [and] feedback from ICA members and advisors regarding procedural irregularities and issues”. Turning to panellists, it argued that rogue participants “who have negligently or purposefully departed from well-established precedent and interpretation” have encouraged “dozens of frivolous complaints” and are responsible for a surge in abusive complaints and RDNH findings.
In response, Brian Beckham, head of the internet dispute resolution section at the World Intellectual Property Organisation’s (WIPO’s) Arbitration and Mediation Centre, characterised this focus on the UDRP as “remarkable”, adding that it “betrays a clear misunderstanding of the actual mechanics of impartial and efficient ADR [alternative dispute resolution] case management”. He added that the document “misses the elephant in the room: the fact in itself that trademark owners are forced to invest in remedying often obvious instances of cybersquatting knowingly undertaken with impunity. Especially where the numbers of domain names impacted by the UDRP are necessarily dwarfed by the total extent of domain name registrations, it is remarkable that ICA sets its sights on the one credible mechanism currently at trademark owners’ disposal. Any harm that will come to the UDRP will likely shift rights owners’ higher-level attention to the parties involved in these abusive practices”.