WIPO is upset and largely missed the point.
World Intellectual Property Organization, one of the many groups that manages UDRP cybersquatting cases, has expressed its displeasure with Internet Commerce Association’s* (ICA) opening platform for UDRP review.
Speaking to World Trademark Review**, Brian Beckham, head of the internet dispute resolution section at WIPO’s Arbitration and Mediation Center, made a number of comments. I have annotated them individually:
While this ICA advocacy piece purports to identify a range of so-called ‘problems’ and ‘solutions’ related to administration of the UDRP, it suffers from a number of glaring omissions. Namely: (1) it fails to acknowledge the UDRP’s globally-recognised success for all stakeholders;
Well, the blog post announcing the platform states:
“The UDRP although flawed in many significant respects, has been largely successful in being used to resolve thousands of domain name disputes since its inception in 1999.”
(2) it finds fault with the entire UDRP system based mainly on incidental and unrepresentative decisions, or the practices of a single (for-profit) provider;
There are certainly problems with other providers, but WIPO is not immune to bad decisions. And while bad decisions are relatively scarce, they create an undue burden on domain name holders.
(3) it betrays a clear misunderstanding of the actual mechanics of impartial and efficient ADR case management and fails to appreciate the respective oversight roles; and,
I’m sure WIPO can discuss these in greater detail, but I think we can all agree that adding fairness and checks and balances to ensure it is truly “impartial” is a good idea.
(4) it 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.
This is the elephant in the room? In a perfect world, trademark holders could get back obvious instances of cybersquatting for free. They could also enforce trademarks for free. Heck, WIPO could lower its fees to help. But it’s not a perfect world, and some complainants abuse the system.
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.
A few things here. First, WIPO often touts the high number of UDRP filings and usually neglects to put it in perspective of the total number of domains registered. Now, suddenly, it cares about this ratio.
Second, it’s not ICA that is drawing attention to UDRP. It’s part of an overall review of rights protection mechanisms at ICANN. Because ICA cares about the outcome of UDRP review, it’s expressing its opinion.
Third, I don’t read anything in the ICA platform that suggests that UDRP should go away or not be at trademark owners’ disposal. In fact, I don’t see anything in its platform that suggests changing the actual UDRP. It doesn’t want anything to get in the way of trademark holders filing and winning legitimate UDRP cases; it is merely trying to limit the damage from bad and abusive cases.
* I am a member of ICA but was not involved with crafting the platform.
* Free registration required, although the registration pages and login pages do not appear to be secure.
Thank you for the article. I appreciate you keeping the domainers in the loop.
I guess they can’t handle healthy criticism.
The UDRP process is not as abusive as ten years ago, but seriously, who is fooling who, the UDRP is very flawed still.
For example, how come domain owners are denied RDNH so often when the process has been obviously abused? Why are exceedingly frivolous cases allowed to move forward when they are reviewed in advance for merit by WIPO? Why even have a review then if they are going to rubberstamp every UDRP that lands on their desk? They do it for profit, duh!!! So, they are very biased towards their own pocketbooks.
WIPO can never be impartial to the UDRP process because they have a vested interest in making money, which is why they brag about the number of UDRPs on their platform, which you also mentioned above.
Stop turning a blind eye, WIPO. There are legitimate concerns about abusive trademark owners. Swallow your pride and try to listen to the points instead of automatically judging.
Zak Muscovitch and Nat Cohen did a beautiful job of highlighting some shortcomings of the UDRP process. Obviously a lot of work went into this. I didn’t see this as a slap at WIPO at any stretch but rather some excellent recommendations for imrovement on a process that really hasn’t been updated in decades and needs some tuning. Their reaction seemed rushed.
I agree regarding the reaction. I think something along the lines of:
“Over the past X years WIPO has helped facilitate the fast and affordable resolution of X cybersquatting claims, helping parties avoid the courtroom. ICANN’s review of UDRP gives us the opportunity to review some of the procedures around UDRP, and hopefully extend WIPO’s best practices to other ADRs. We look forward to working with ICA and other parties to make UDRP an even better resource to resolve cybersquatting disputes.”
would have been smarter
Exceptionally well put Andrew.
True. WIPO’s representative showed a deep bias here.
It is alarming that Mr. Beckham read the ICA’s sensible and readily substantiated platform, yet believed that the appropriate response was the self-satisfied sneer of a millennial intern. (Take it, Don Draper:
https://vlipsy.com/embed/srxHKD5h.)
The non-profit WIPO’s revenue is up 11% from last year to 890M USD. I submit that that is adequate to hire someone sophisticated enough, canny enough, to prevent the reputation of a valuable institution from being brought low by vulnerabilities which admit grand-scale, multimillion-dollar theft.
The ICA is doing the WIPO and all DRPs a favor, Mr. Beckham. ‘Here are the harms that have been and are being suffered through your negligence. Remedy the problems, and thereby protect yourselves.’
*http://www.wipo.int/edocs/mdocs/govbody/en/a_57/a_57_6.pdf.
(From the foreword, 890M in revenue, with a 70M USD surplus.)
Like trademark law, the WIPO does not exist to serve the interests of corporations and is not beholden to them. It exists to serve the consumer good. Maybe someone in Geneva can disabuse Mr. Beckham of his misperception. He may be from the US, but he is not in accord with our US courts.
And yes, domain investing serves the consumer good. It was intended from the outset. The balance of scarcity and inherent value in the .com/.org/.gov and country codes keeps the internet in the form of a city, rather than a perilous wasteland of disposable masks.
This is not 1998. Mr. Beckham needs to learn the difference between 1) domain name owners represented by the ICA (effectively, ‘most of the humans of earth’), and 2) ha’penny cybersquats fomented by scaremongering nTLD marketers and starveling lawyers.