Here are some needed reforms to UDRP.
Uniform Dispute Resolution Procedure (UDRP) has some problems. Here are four quick ways to improve it.
1. Only allow an additional submission if specifically asked for by panel. UDRP rules prescribe that the complainant in a case can only make an addition submission (usually a response to the respondent’s claims) if specifically asked to do so by the arbitration panel. But most of the time an additional submission is submitted it has not been requested by the panel. This slows down the process and places an additional burden on the panelists. UDRP providers such as National Arbitration Forum and WIPO should only forward additional submissions to the panel if requested to do so by that panel.
2. Eliminate venue shopping. Because complainants can choose which arbitration provider will hear a case, it leads to venue shopping. Arbitration companies that don’t rule in favor of complainants enough lose business and eventually shut down (this has already happened). Filings under UDRP should be randomly distributed or rotated to arbitration companies.
3. Change repeat filing procedures. A complainant can refile the same exact case, causing the respondent to spend more money and resources responding. Panelists frequently decide to not hear a case again, but only after the case has gone through its regular pleadings and the respondent has had to answer. Instead, a complaint should be forwarded to a one person panel for an initial decision on whether or not to proceed. Only if it decides to proceed will the respondent be asked to submit his response. Also, any particular domain should only be allowed to be filed a second time at the same arbitration provider; no switching from NAF to WIPO or vice-versa.
4. Put some teeth into Reverse Domain Name Hijacking. Reverse Domain Name Hijacking (RDNH) doesn’t have any financial penalties. Add some.
Perhaps it would be worth considering a process of appeal where respondents whom had initially lost could pay a UDRP fee and have the decision reviewed by different panelist in order to remove any doubt or perception of individual panelist bias without the cost of having to challenge in a court of law, which may prove prohibitive for some respondents.
I think the fact that UDRP has been free of financial penalties has been one of its great strengths. If respondents or complainants are looking for financial redress that’s probably best left to the courts.
The US runs the internet and US courts should decide these diputes. Farming out our justice system is Bazzar. I’ve hand my domains stolen from panelists all over the world who #1 don’t understand the law and #2 hate Americans.
Why should some dude living in China decide what happens to the property of an American?
When I handled my first UDRP, I had difficulty discerning what rules of procedure or evidence to follow. Because of my previous experience as a litigator, I chose to treat the UDRP like a federal lawsuit and chose to follow the Federal Rules of Civil Procedure and Federal Rules of Evidence. More importantly, the concept of stare decisis (“to stand that by which is decided” or precedent) is not followed by panelists. The lack of consistency in decisions makes the UDRP process a huge challenge for everyone involved.
“Why should some dude living in China decide what happens to the property of an American?”
And VICE VERSA
Everyone’s suggestions here seem valid. A case in China or Chinese related domains or TM’s should be handled by arbitration in China.
I would also say that regarding #3 there should be an independent body not related to the arbitration panels that decides whether a case should proceed to arbitration.
Right now, as it stands, the NAF and WIPO just rubber stamp everything YES to go to UDRP….it’s a disgusting process that needs to be rectified quickly.
“And VICE VERSA
because america owns the internet no matter what other countries want to think. Obama now has the power to shut it down.
When you invent something you have special rights to it.
Here is one of the problems with changing UDRP and WIPO.
It was structured to be an arbitration process where the decision is final.
Why enter into arbitration when you would have the right to set aside the final decision because you don’t like it.
Presently, either parties can do that by IMMEDIATELY filing in federal court.
But, it is very costly and drawn out.
@Andrew – Your suggestions #3 and #4 are excellent. Both of them should be adopted immediately.
The only time we will ever see a UDRP reform is when the Have Nots OWN the Haves, .com names. In other words I would not hold my breath on it happening anytime soon. The battle for eyeballs is to high a stakes game for the powers that be, to give up the UDRP pirate trade.
It would seem to me that a lot of good reform ideas could be implemented by simply looking to other systems in which they have already been implemented — and where they work.
CIRA provides for a $5,000 RDNH fine for .ca disputes. .uk and .za disputes have a really nice appeal procedure.
I think that an appeal procedure would be a good idea — but that any panelist who is overturned more than three times in a year should be suspended from being a panelist for one additional year. That will knock off the radicals on both sides, and will encourage predictability and a uniform evolution of decisions.