WIPO panelist selection numbers are very different from National Arbitration Forum. Why?
Attorney Zak Muscovitch released a study last month about distribution of cases to panelists at National Arbitration Forum. His findings were shocking. Not only were there “runaway panelists” who have heard a disproportionate number of cases, but those runaway panelists happen to find in favor of complainants much more than the typical panelist.
With the help of UDRPsearch.com, Domain Name Wire analyzed similar data from the other leading UDRP provider, World Intellectual Property Organization. The results are shocking, but not because WIPO shows a similar sort of systematic bias. Instead, the data show completely opposite results.
Analyzing WIPO UDRP data from 1999 until early 2010, it turns out that the five WIPO panelists who have heard the most cases are in the bottom quartile when it comes to finding in favor of the complainant and transferring or canceling a domain. 8 of the top 10 busiest panelists are in the bottom quartile. In other words, there’s little possibility that cases are being handed to arbitrators because they’re more likely to rubber stamp them for the complainant.
Top 10 Panelists by Number of Cases
Willoughby, Tony 293
Abbott, Frederick M. 238
Donahey, M. Scott 236
Foster, Dennis A. 204
Barker, Sir Ian 196
Page, Richard W. 196
Limbury, Alan L. 193
Bernstein, David H. 160
Partridge, Mark 158
Perkins, David 157
Top 5 Lowest Complainant Win % *
33% Sorkin, David E.
56% Lyon, Richard G.
57% Partridge, Mark
59% Blackmer, W. Scott
60% Bernstein, David H.
*Minimum 50 cases required to be considered
When you consider WIPO’s panel selection criteria, these numbers shouldn’t be too surprising. David Roache-Turner, Head – Domain Name Dispute Resolution Section at WIPO, explained to Domain Name Wire in a written statement (you can read the full statement here – pdf):
As to WIPO’s own panel appointment considerations, these are informed by a range of highly conservative, legally and ethically responsible factors, including: panel language capability; party and panel nationality; geographic diversity; panel availability; panel experience; jurisdictionally relevant expertise; where possible, prior cases involving parties at issue, and citation in pleadings to previous decisions; and lack of panel conflict as confirmed by declarations of independence and impartiality (WIPO’s declaration document is publicly posted on the WIPO website).
Indeed, some of the most prolific WIPO panelists probably find for complainants less often because they are assigned to more contentious cases. Assignment to three member panels might also play a role, since three member cases necessarily have an active respondent.
To call a WIPO panelist “prolific” might be a little misleading as well. Even the most active WIPO panelist wouldn’t fall into the top 10 at National Arbitration Forum. NAF’s top panelist has heard over three times as many cases as WIPO’s most active panelist, a fact not lost on Roache-Turner:
“As you would be aware, none of the most frequently appointed WIPO panelists even remotely approach the remarkable NAF appointment shares now receiving attention. In apparently sharp contrast to the situation elsewhere, of the most frequently appointed WIPO panelists, the transfer rate is, as you would also know, well within the overall average for all UDRP panelists.”
In a recent letter to ICANN relating to the proposed Uniform Rapid Suspension scheme, National Arbitration Forum explained some factors used in selecting panelists:
Some practical considerations the Forum asks ICANN to contemplate before promulgating specific rotational rules are that some panelists are simply far more available than others. There are some panelists who refuse most cases, some who have conflicts, and others who take more time than the Policy and Rules have allotted to accept the case. So, while the Forum endeavors to appoint panelists in as fair a rotation as possible, there are varying considerations that should be taken into account.
How can two UDRP managers, both claiming to assign panelists equitably, have such different numbers? Surely Carolyn Marks Johnson, who is closing in on 1,000 cases decided at National Arbitration Forum, isn’t assigned to that many cases merely because she’s more available than other panelists.
At ICANN’s board meeting last week, it discussed “UDRP Policy“ relationships with service providers; changes in procedures”. The minutes from that meeting are not yet available, so it’s unclear exactly what the discussion was about.
But to maintain confidence in UDRP, it makes sense that there would not be any significant difference in how various providers assign panelists or interpret the rules of UDRP. Clearly, that’s not the case.
The branding folks(I love them so no hate mail needed) have been hot to try to redefine domain names for several years and are making in roads getting into decision making positions. UDRPs are a cheap way around it to steal the domain name for nothing.
On the other hand, use a domain name improperly against a trademark holder of a similar name and you are asking for trouble.
When domains were first sold they were simply internet addresses. That’s all they are today. They were NOT sold as brands or trademarks. Many of these so called “trademarked” names can be purchased at market prices if a brand or trademark holder wants them. All it takes is a non threatening email in most cases. Present your case and offer to buy. Negotiate in good faith.
Great study. ICANN released a summary of resolutions regarding last week’s Board meeting, and as usual they did nothing about UDRP. At a minimum they need to bring the providers under contract with ICANN, and start fixing these issues where the UDRP is being misused by complainants. Rogue panelists need to be reigned in too.
Very interesting. So, there is a sense of fair play going on with WIPO.
I guess that is partly why we don’t hear as much bad stuff from them as we do the NAF.
It’s awesome all these stats and insights becoming available lately. 🙂
On a side note, thanks for teaching me the word “quartile”. I did not know that was a word….not enought math education for me I guess. 🙂
@ Shorty – so in other words, you were in the bottom “quartile” in your math class 🙂
Very interesting data.
However, to get a better snapshot, the data should also be given for the past 5 yrs.
If you get stuck with a UDRP at NAF, can you opt for a 3 member panel, then present a list of WIPO panelists for your choice? 🙂
Drew: You actually can, because you’re allowed to select panelists from any UDRP provider (same for complainant).
See the last part of section 5.(b)(v) of the rules:
“If either Complainant or Respondent elects a three-member Panel, provide the names and contact details of three candidates to serve as one of the Panelists (these candidates may be drawn from any ICANN-approved Provider’s list of panelists);”
However, it might be better to just file in court, instead of playing roulette at NAF.
IMHO, reducing UDRP provider performance to a question of whether there is, or is not, a “contract” per se, misses the point. For example, the UDRP is silent on how panelists are assigned to cases, so the issue here would not be addressed within the confines of “is the provider following the UDRP” reduced to a contractual obligation.
I don’t see a direct connection between the idea of assigning panelists on a random or rotating basis, with the goal of obtaining equitable results overall. Not all cases are the same, and some are “simpler” than others. For example, a case where the domain name is MicrosoftPorn.com doesn’t require as much thought as a case raising more complex issues than “is this a famous inherently distinctive mark being associated with porn?” I agree with Mr. Roche-Turner that more experienced panelists should be assigned to cases requiring relatively more thought.
While a “taxi stand” rotation has a certain fairness to the taxi drivers, the passengers are usually most interested in obtaining a taxi driver who is familiar with the part of town to which the passengers are headed.
Some sort of entrance examination for panelists then?
>>Assignment to three member panels might also play a role, since three member cases necessarily have an active respondent.<<
Is this necessarily true ? Although uncommon, I had been of the impression that Complaintant did have the option of selecting a 3 person panel. Could not a Complaintant request a 3 person panel while at the same time the Respondent doesnt even submit a response
@ Mel – good point. I’m sure that’s happened, although it’s very, very rare.
@Mel – Yes it happens, but not often. I usually call that a “gift”.
Hi Mr. Berryhil –
Do you mean that a Complaintant filing for a 3 person panel is a gift to the Respondent ? I would think that for cases where the Complaintant doesn’t want to chance the “random” decision of a single panelist – a strategy opting for a 3 person panel would provide less randomness. Assuming that Complaintant has a strong enough case to begin with.
Mel
John – “While a “taxi stand” rotation has a certain fairness to the taxi drivers, the passengers are usually most interested in obtaining a taxi driver who is familiar with the part of town to which the passengers are headed.”
While I agree in concept, it remains the provider’s obligation to ensure that their panelists are in fact knowledgeable. A taxi driver who is not familiar with the town ends up not being hired or having so many disputes that they are let go. In this day in age there are also things like GPS systems to help those who cannot find their way by memory. The provider must ensure that the panelists are educated and if they see clear errors in opinions or faulty reasoning they should remove the panelist from the rotation.
Nat Arb Forum is ripe for a class action lawsuit. They are a criminal organization.
Everyone of is on to their game now thanks to Zak.
Actually, the Nat Arb people deserve jail time.
They should close up shop while they can. The writing is on the wall.
ICANN needs to step in and stop this right away or they could be held liable too.
I can’t wait to see the financials that come out during discovery in the up coming lawsuit.
Here’s what would be a nice fix:
1. All 1 member panel proceedings are appealable to a 3 member panel.
2. If a panelist is reversed on appeal more than 3 times in a year, then the panelist is suspended for a year.
That would get rid of the outliers, I would imagine, like Marks-Johnson and Sorkin, but would tend to create a more uniform evaluation of cases.
Hi Marc
Yes. I like your suggestions. It is the outliers that are the real problem. There needs to be uniformity to the way the panelists apply the law.
Mel
I live in New York City and there are a lot of lously cab drivers!
This was an execellent study to be sure.