Paul Keating suggests fixing UDRP, not introducing an alternative domain dispute mechanism.
There were a number of thoughtful comments submitted to ICANN regarding the Implementation Recommendation Team’s (IRT) final report. But attorney Paul Keating went a step further, suggesting a way to modify UDRP domain arbitration rather than introduce a dual solution.
Keating submitted a 20 page response to IRT’s proposal. The first several pages point out the numerous factual errors in the report and goes on to describe serious errors in the individual IRT proposals. But then he dives into his first draft solution, writing:
My parents always taught me never to criticize unless I was willing to suggest a proposed solution that I thought was better. Parents always come back to haunt you and thus I have spent considerable time considering the following proposal.
Keating’s proposal uses the existing UDRP structure with modification to include domain suspension.
1. Complaint filed (normal UDRP complaint)
2. Notice to Respondent (same as UDRP) but with all exhibits sent electronically to respondent via WHOIS address.
3. Election of Defense. Within 14 days post notice, Respondent has 3 choices:
a. elect to defend and pay a nominal fee ($50-$100).
b. elect to surrender the name.
c. do nothing and proceed to either default on the UDRP or defend it.
4. If a defense election is filed (with fee), the domain stays up and running and the UDRP proceeds as normal.
5. If a surrender is filed, then the domain is transferred to the Complainant and the Complainant recovers all filing fees less the arbitration provider’s processing fees.
6. If defense election is not filed (or fee not paid) and there is no surrender election, web page is suspended.
7. In a surrender or failure to elect situation, complainant can decide to accept transfer or suspending domain.
8. Failure to file a defense election is not a default – it merely means the web page no longer resolves until the decision is rendered by the panel.
9. Failure to file a surrender notice cannot be evidence of bad faith.
10. If respondent files a formal response, credit is given for the Defense Election fee.
This addresses the speedy resolution issue for those respondents not wanting to defend or pay the fee. While the fee is nominal, Keating points out that under the IRT as proposed it would be 0 (for up to 25 domains). Further, whereas under Keating’s proposal a “default” – failure to opt in – results in the name coming offline, under the IRT there is no suspension until the decision is made. Keating suggests that it is unlikely that true trademark domains will be defended as the revenue (less registration fees) is not worth the filing fee to prevent suspension of the domain.
I’m sure there are some gaps in Keating’s proposal that would need to be considered. But the overriding idea — fixing UDRP rather than creating a two level system — is the correct approach to solving trademark concerns.
See Keating’s full comments here (pdf).