Here’s What People Think About UDRP – Domain Name Wire
A diverse group of people have commented on the UDRP as the review of rights protections progresses.
A few weeks ago, I published an article about the end of the public comment period for ICANN’s “State of the UDRP Report”, including a summary of comments from Internet Commerce Association.
ICANN has now released a Final Public Comment Report, which provides context for Phase 2 of the review of all rights protection mechanisms in all gTLDs.
A quick scan 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) UDRP is OK but could be improved.
The opinions of domainers fall into the second and third camps. I fall into the third but I would be willing to use “as is” to avoid opening a Pandora’s box.
The report also summarizes some proposed amendments to the UDRP. My comments are in parentheses:
- change the requirement for bad faith registration and bad faith use to bad faith registration or bad faith use (this is the intellectual property owner’s dream; they could come after valuable domains registered before their brand doesn’t exist. A National Arbitration Forum panelist is among those offering this, so be careful if he shows up on one of your cases.)
- allowing proceedings in the language spoken by the domain holder (currently there are some protections depending on where the domain is registered.)
- eliminate proof of registrant bad faith as a mandatory requirement for a complaint under the UDRP (I have to ignore actual comments proposing this, but some complainants say it can be difficult to prove the state of mind of the registrant when registering a domain.)
- expanding the scope of action of panels to adjudicate on other remedies sought by trademark owners, such as remedies and pecuniary awards and reimbursement of costs to the
plaintiffs (obtaining money from unknown domain owners will be difficult, but what about penalties for RDNH? I would also be open to the possibility of panelists ordering the domain owner to modify the use of the domain that stops before ordering a transfer. Currently, the decisions are binary: transfer or not transfer.)
This report launches the next phase of the review of rights protection mechanisms. After some complaints (including from WIPO itself) regarding the scope and intent of the charter during Phase 1, the GNSO is expected to review and revise the charter before officially launching Phase 2.
Refining the questions and bringing the right people to the table could greatly benefit the work that follows. As the ICA pointed out, there are fruits at hand that could improve the UDRP all around.