In its August Board Meeting, ICANN indicated its willingness to proceed to a more streamlined process regarding the supplemental rules that are in place by the various UDRP dispute resolution providers. This is great news and, if ICANN approaches this issue with the willingness to monitor the way UDRP providers offer their services, we might actually be in the process of fixing one of the main flaws of the UDRP.
Within the UDRP framework, “Supplemental Rules” refer to the ability of dispute resolution providers to structure certain aspects of the UDRP’s procedural process independently of ICANN and one another and to design procedures that allow a more competitive dispute resolution regime. Historically, ICANN has only insisted that the centres follow the same rules for the resolution of domain name disputes – the Uniform Domain Name Dispute Resolution Policy and especially its paragraph 4 – as well as some default guidelines that deal with the general structure of the system, e.g. composition of panels, deadlines, language of the proceedings, etc. At the outset, this provided UDRP centres with a certain degree of freedom and flexibility and was intended to provide incentives for both parties, flourishing competition, whilst allowing UDRP providers to distinguish themselves from one another.
However, a lack of proper monitoring on behalf of ICANN combined with the business and financial aspirations of these centres has resulted in centres putting in place and enforcing supplemental rules that have contributed greatly to forum shopping, aiming to please only one of the parties to the detriment of procedural justice.
In my book, “The Current State of Domain Name Regulation: domain names as second-class citizens in a mark-dominated world”, I have argued that the way Supplemental Rules have been integrated within the UDRP system have resulted in a great amount of inconsistency, especially when the UDRP model is meant to be uniform. This is highly problematic as UDRP centres use their supplemental rules to provide false incentives and take advantage of the limited rights the UDRP affords the Respondent. For example, various centers have realized the tight deadlines respondents have to answer to the complaint and have addressed it in a way that places them in an even more obvious disadvantage. The NAF Supplemental Rules, for instance, allow respondents to submit their response after the required twenty days deadline, only if the latter request so in writing and pay a $100 fee, within, however, the twenty day deadline. (Extension for Filing a Response: (a) Paragraph 5(d) of the Rules provides that the Respondent may request additional time to submit a Response, or may be given additional time if the parties stipulate to an extension and NAF approves. Any request by the Respondent for an extension or any joint request by the parties for an extension shall: […](v) be accompanied by an extension fee of $100.)
On another level, this inconsistency in the Supplemental Rules of UDRP providers has an impact on how centers interpret issues concerning the impartiality and independence of their panelists. Each of the centers is allowed to produce its own rules and set its own individual parameters of panelist independence. For instance, WIPO has not produced any substantive rules for party challenges; NAF accepts challenges only after the panelist has been appointed and only within a small time frame; The Asian Domain Name Dispute Resolution Centre allows challenges any time during the procedure but before the rendering of the decision, whilst the newly appointed Czech Arbitration Court does not provide to the parties any guidelines concerning the challenge of panels.
These are just two manifestations of the detrimental effect Supplemental Rules have upon the UDRP. We need to accept that affording the UDRP providers such amount of freedom has produced problematic results and has contributed to the general procedural unfairness the UDRP is currently facing. So, it is indeed a welcoming step to see that the ICANN Board is willing to discuss the role of Supplemental Rules in the UDRP and to see the ICANN staff wanting to impose tighter controls over these rules and their presence in the UDRP.
I can only hope that this is the first step towards slowing down the freedom of the UDRP providers, addressing the issues of inconsistency, eliminating forum shopping and opening the road for a substantive review of the UDRP.
I just happened to come across an article that shows what appears to be another hit in the process that ICANN has placed much of its future on - that is the Uniform Domain Name Dispute Resolution System (UDRP) of course. It all started when attorney Zak Muscovitch released a study concerning the way one of ICANN's accredited UDRP providers - the National Arbitration Forum - is distributing its case load to its various employees. His results show that some of the panelists receive a substantial amount of cases with the majority of these cases being decided in favor of the complaining party (trademark owner). This prompted DomainNameWire to conduct its own study of WIPO panelists and its conclusions were that many of the top 10 panelists have recorded the lowest complainant win.
What does this all mean? Well it means that we are exactly in the same place we were when professor Geist released his study almost 10 years ago. He introduced us to the possibility of forum shopping the same way he introduced us to the fact that we really have no knowledge as to how the centers appoint their UDRP panelists. And, when asked, we always seem to receive abstract and non-satisfying answers. What a great inconsistency for a system that is supposed to be uniform.
So, these results are not really something new and they should not come as a surprise to anyone. Even though it is really the responsibility of each one of the centers to appoint its panels equitably and to the best interests of both parties, the fact that ICANN has left the UDRP on its own and without proper review or control has resulted in a system that demonstrates signs of disintegration (look WIPO's attempt to sidetrack ICANN's Uniform Rapid Suspension System though the initiation of a 'fast-track' process). Needless to say that, at this point, it really makes no difference which center is more bias - the fact remains that the UDRP is disproportionally biased in favor of trademark interests whether this is done through forum shopping or through the intentional appointment of certain panelists.
However, the effect of this study is much more profound. ICANN is currently in the process of using the UDRP as the prototype to suggest the creation of two separate policies - the Uniform Rapid Suspension System URS) and the Post-Delegation Dispute Resolution Procedure (PDDRP). Both processes are conceived, structured and drafted with the whole skeleton of the UDRP in mind - everything, its rules, its procedures, its substance, everything - and have both been justified on the success of the UDRP. Now, what does that tell us about the fairness and justice of these systems?
It actually tells us a lot. It tells us that both systems are about to fail, are about to become biased and are about to create a highly competitive market for the ICANN-accredited centers that will seek to please their trademark customers. Now, if that is done through forum shopping or intentional panel appointments, again it does not really make that much difference. Complainants will still win and both systems will stagnate just like the UDRP.
The UDRP needs an immediate review, especially if it is to be used as the basis for other systems. The fact that the UDRP is so bankable explains why so far none of its stakeholders has initiated any process to review its body both substantially and procedurally; UDRP decisions bring a lot of money and reputation to both the centers and many of their panelists. This is the price of not having in place proper checks and balances that will ensure the proper application of justice.
Konstantinos Komaitis, the individual!
Views are my own and my own only!