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.