Cases are up, but so are domain registrations.
ICANN has published data about the Uniform Domain Name Dispute Resolution Policy (UDRP) and asked for community feedback.
The report examines the history of UDRP, trends, and opinions from both IP interests and domain owners.
ICANN’s calculated that the number of UDRP cases has been growing by 6% per year on average since 2013. But it also noted that cases are filed against a tiny percentage of registered domains, as shown in this chart in which you can’t even see the column for UDRP cases:
ICANN figured that Complainants won 78% of cases, but this number is low because it doesn’t consider settled and withdrawn cases. If you look at the number of cases decided, it’s around 92% in favor of Complainants.
The report also notes that reverse domain name hijacking cases are rising, with RDNH findings in 2% of all cases.
Kevin Ohashi says
It shocks me that they didn’t use https://UDRP.Tools to dig into the outcomes more (Disclaimer: I helped build it). Going through the data there I’ve seen so much BS happening in that system. How are some panelists making up their own corpus of case law? Peter L Michaelson cites himself 84% (!) of the time. Whereas a panelist like Sandra J Franklin who has nearly ~9x as many cases has a self citation rate of 4%?
How does Gerald Levine decide to not find RDNH because a complainant is ignorant of the law? (https://ciidrc.org/wp-content/uploads/2021/09/2021-11-30-vandorp.com_.pdf)
“Offsetting this, however, is the troubling realty that for all the simple
architecture of the UDRP and ease in filing complaints, mostly with little guidance for pro se arbitrants, the law (whichever side of the caption they may be on) is daunting.
For these reasons, Panels are less inclined to find pro se arbitrants guilty of RDNH. BFS of the Americas LLC, dba Battery Filling Systems v. Matthias Pahlke, Fillwatch Landau GmbH, D2008-1786 (WIPO January 29, 2009) (holding that “[t]he Complaint was obviously prepared without the benefit of legal advice, and there was evident naivete in [believing that it had a claim].”); Praetorian Legal Limited v. Michael Ross, D2019-2468 (WIPO November 29, 2019) (. “The Complaint was so inadequate that there was never any real risk it could succeed…. In these circumstances the Panel has concluded that a finding ofRDNH is not necessary.”) So it is here, and for this reason Respondent’s request to sanction Complainant with reverse domain name hijacking is denied. ”
Using two citations of other sole panelists who dismiss RDNH simply because the complainant is lacking legal counsel is unfair. Domain registrants aren’t given any leeway or understanding. There have been plenty of cases that have been transferred that shouldn’t have. But ignorance of the law is a valid defense for complainants? That is a system that is stacked in favor of IP holders and tries to legitimize systems that minimize domain registrant rights.
Why are only IP attorneys who represent complainants allowed to be panelists? Why are panelists allowed to turn around and represent complainants as well? How can a single panelist re-interpret UDRP and change what the meaning of registered in bad faith means and disregard the ‘registered’ portion?
If you want to see how unfair UDRP is, start digging into the data. I tried to help make it as accessible as possible and it’s by far the deepest investigation/analysis tool that exists for UDRP. It’s a great starting point if you’re going to prepare a comment.
John Poole says
Kevin are you going to file a comment in the ICANN proceeding at https://www.icann.org/en/public-comment/proceeding/policy-status-report-uniform-domain-name-dispute-resolution-policy-udrp-03-03-2022 – and if not, why not?
Kevin Ohashi says
Maybe. I don’t exactly have strong faith in ICANN being an organization that is accountable to listening to public opinion and actually doing anything that doesn’t represent the monied interests which control it. The last time I analyzed it, despite absolutely overwhelming opinion opposing something (99%) they disregarded it and it took the California AG stopping their behavior (https://reviewsignal.com/blog/2019/06/24/the-case-for-regulatory-capture-at-icann/).
So if I don’t submit a comment, for whatever reason, assume it’s because I have no faith in ICANN as an organization that represents the public in a fair manner. Maybe I’m incredibly jaded, but I am personally pretty tired of trying to argue with ICANN insiders about policy. What I took away from the .ORG fiasco was that there is real power outside ICANN which can keep them in check far more effectively.
Does that mean I think people shouldn’t submit comments? No, please do. The tool and data are out there for you to harness the most in-depth UDRP data in existence. Find the problems. It becomes far easier to find and argue the problems when you can accurately find the facts to back them up. I helped create that fact finding tool, I’d love to see savvy people use it to address the structural problems in the UDRP system. I’m sure there are smart people who understand the ICANN world far better than me and can make the case in ICANN land more effectively. I’m a software developer and data scientist, I’m happiest creating the tools to help people make better data driven decisions.
Kevin Ohashi says
Follow up evidence as to why I may not submit a comment: https://freespeech.com/2022/03/06/sham-icann-working-group-plans-to-trample-on-domain-name-registrants-legal-rights/
ICANN is captured and doesn’t actually listen to public opinion.