March 19th, 2014
DOMAINERS BEWARE! The new URS – PART IV – APPELLATE PROCESS

This is Part 4 of our series of articles on the Uniform Rapid Suspension System (URS) and how it effects all of the new gTLD extensions. Unlike the Uniform Domain Name Resolution Policy (UDRP), which still governs all of the old gTLD extensions, a losing Domain Name Investor is NOT required to transfer the domain name to the Complainant. However, the use of that Domain is suspended till the registration expires. Interestingly enough, there is no prohibition of re-registration by the losing party when the current period expires.

Under the UDRP, there is no appellate procedure. However, the loser has 10 days from the date of the decision to file a new lawsuit in the court of the jurisdiction agreed upon in the UDRP complaint, a procedure that can be (and usually is) very time-consuming and expensive.

However, under the URS, either side can appeal a decision by an Examiner. There is an online form that must be filled out and a Filing Fee, the amount of which will depend upon whether you want one person or 3 to review the Case on Appeal. In addition, the Appellant may also add new material and evidence that was not used in the original filing. The Appellant must pay either $300 for a one person panel or $950 for a 3 person panel if there is no new material to be presented. However, if additional evidence will be included in the appeal, the fee increases to $450 for one person and $1,300 for a 3 person panel. The Appellee (loser in the URS proceedings) pays nothing.

During the Appellate process, the domain will be locked by the registrar so that the winning party in the initial case cannot transfer it while the appeal is pending. In the event that the Appellant elected a one person panel, the Appellee may elect to increase to a 3 person panel by payment of an additional fee. The Appellee must use the form provided by the National Arbitration Forum to Respond to the Appeal.

The 1 person or 3 person panel shall have 14 days to make its decision, but in the event of “exceptional circumstances”, can extend the time. there is an additional “twist” to these procedures. Instead of appealing the URS decision to a URS panel, the Appellant has the option of filing the appeal to a UDRP Panel. The Forum will credit half of the filing fee paid in a Forum-administered URS case to the filing of a Forum-administered UDRP case for the same domain names, by the same Complainant, and between the same Parties, if the Appeal to the UDRP is filed within 30 Calendar Days.

The Supplemental Rules state that the Decision of the Appellate Panel is final, but there is no mention as to whether or not the loser can file an independent lawsuit in a court of competent jurisdiction. As there is no provision in the Rules for the parties agreeing to Jurisdiction, it would appear that this option is not available.

Of course, the best way to avoid all of this is to not register a domain that is an “obvious” trademark, though that is easier said than done.

Thanks for “listening”

Howard