A diverse group of people commented on UDRP as a review of rights protections moves forward.
A few weeks ago, I posted about the end of the public comment period for ICANN’s “UDRP Status Report,” including a summary of the Internet Commerce Association’s comments.
ICANN has now published a final report of the public comments, which provides context for Phase 2 of the Review of all Rights Protection Mechanisms in all gTLDs.
A quick skim of the 44 comments suggests that stakeholders fall into three main groups:
1) the UDRP is fine as-is
2) the UDRP should be completely overhauled
3) the UDRP is okay but could be improved.
The opinions of domainers fall into the second and third camps. I fall into the third but would be willing to go with “as-is” to avoid opening a can of worms.
The report also summarizes some proposed amendments to the UDRP. My comments are in parenthesis:
- changing the requirement for bad faith registration and bad faith use to bad faith registration or bad faith use (this is the IP-holder’s dream; they could come after valuable domains registered before their mark existed. A National Arbitration Forum panelist is among those proposing this, so be mindful if he shows up on one of your cases.)
- allowing proceedings in the language spoken by the domain Registrant (right now, there are some protections based on where the domain is registered.)
- eliminating proof of the domain registrant’s bad faith as a mandatory requirement for a complaint under the UDRP (I must be overlooking the actual comments proposing this, but some Complainants argue it can be challenging to prove the registrant’s mindset when registering a domain.)
- expanding the scope of panels to rule on other remedies claimed by the trademark owners, such as monetary remedies and compensations and refund of fees to the
complainants (getting money from unknown domain owners will be tough, but what about penalties for RDNH? I’d also be open to an option for panelists to order the domain owner to change the use of the domain that stops short of ordering a transfer. Right now, the decisions are binary – transfer or don’t transfer.)
This report kicks off the next phase of the Rights Protection Mechanisms review. After some complaints (including from WIPO itself) about the scope and intent of the charter during Phase 1, the GNSO is expected to review and revise the charter before officially launching the second phase.
Refining the questions and getting the right people around the table could greatly benefit the work that follows. As the ICA has pointed out, there is low-hanging fruit that could make the UDRP better all around.