The Internet Commerce Association (ICA) has published its proposed UDRP REFORM POLICY PLATFORM. I believe this to be a big step forward, if adopted by ICANN, in providing safeguards for both Trademark Complainants and Domain Investor Respondents. It basically seeks transparency and uniformity in panels and decision making by Dispute Resolution Providers (DRPs), primarily, but not exclusively, WIPO and NAF (FORUM). The Platform has 5 areas of concern which are addressed as follows:
I. ACCOUNTABILITY –
A. Put DRPs under contract or similar with ICANN to make them accountable for their conduct or performance. ICANN should establish a framework for oversight, standards, performance and monitoring of all DRPs.
B. ICANN should establish a procedure for receiving and investigating complaints about DRP conduct or performance.
C. The UDRP should be reviewed at regular intervals as there has been no review in 18 years.
II. TRANSPARENCY –
A. Require all existing and future DRPs to disclose their ownership, affiliations and management, so that everyone knows exactly who they are dealing with.
B. Establish Standards and Procedures for all panelist accreditations and de-accreditations.
C. Regularly and consistently provide UDRP data across all DRPs.
D. As panelists are presently appointed by the DRPs in secret, without any transparency whatsoever, ICANN should require DRPs to follow an established and fair procedure for appointing panelists to UDRP cases.
III. UNIFORMITY –
A. In order to prevent forum shopping, ICANN should establish a Uniform set of Supplementary Rules common to all DRPs, and prohibit any DRP from unilaterally adopting Supplemental Rules without ICANN oversight and prior approval.
B. Revise UDRP Rule 6(d) to allow both Complainants and Respondents to nominate panelists from any DRP roster of panelists, and not just Complainants as the rule presently states.
IV. PREDICTABILITY –
A. Unfortunately, there are currently certain panelists who disregard well-established interpretations of the Policy, who continue to be assigned by DRPs to additional UDRP cases, with no recourse, oversight or de-accreditation mechanism in place to remove “Rogue” panelists who threaten the predictability of the UDRP. ICANN should require all DRPs and panelists to subscribe to a single “consensus” view of the Rules and be subject to de-accreditation or some sort of discipline for failure to do so.
V. BALANCE –
A. The UDRP decisions in favor of Complainants have traditionally exceeded 85% of the Complaints filed. This is partially due to Respondents failing to Respond to UDRP complaints. However, some Complainants have been “gaming” the system, because certain DRPs accept cases with fees being paid by Complainants on a “staggered basis’, with the balance of fees only payable after a Response has been filed. Some Complainants then fail to pay the 2nd installment after the Response has been filed, the Respondent had to spend substantial sums to file the Response and the domain name has been locked by the Registrar. To solve this inequity, the DRP should be required to appoint a single Panelist to make a finding of bad Faith against the Complainant, refund the Respondent’s fees and prohibit the Complainant from bringing another UDRP Complaint to any DRP.
B. The UDRP Rules require simply a Complaint and a Response. However, currently some Complainants will file an additional submission as a rebuttal to a Response which will be put to the Panel by the DRP to determine whether or not to admit it. The Panel has to review it to determine whether or not to accept it, which puts the Respondent in a highly prejudicial position. To resolve this inequity, the Rules should require the Complainant to submit its claim for an additional submission and await a favorable ruling before submitting the submission to the Panel.
C. Currently, DRPs nearly exclusively accredit trademark lawyers as Panelists, but not Registrant lawyers. This is highly prejudicial, and DRPs should be required to accept applications to serve as a panelist by Registrant lawyers.
For the complete UDRP REFORM POLICY PLATFORM 2018, please go to https://www.internetcommerce.org/icas-udrp-reform-policy-platform-2018/.
Thank you for “listening”
Howard
The Neu Facebook
