Discussing the UDRP with the "originals"!

In May 5 & 6, 2011, I will be traveling to Washington, DC to attend a two-day conference organised by the Global Internet Governance Academic Network (GigaNet) in association with the American University’s School of International Service. The title of the Conference is – ‘Global Internet Governance: Research and Public Policy Challenges for the Next Decade’. The first day, the conference is more policy-oriented, discussing current themes relating to Internet Governance and public policy and the Secretary for Commerce, Larry Strickling will be delivering the keynote speech. In the second day, the conference will take a more academic tone and will discuss various issues of Internet governance under a more scholarly approach.

I am presenting my paper on the UDRP and the way it has transformed trademark law the second day and I cannot possibly contain my excitement. I have attended various conferences where I spoke about the UDRP in a very intellectual and engaging environment. But this time, two of the ‘originals’ will be there. Back in 2000, when ICANN introduced to the world the UDRP, the writings of three academics made a significant impact on the way the scholarly community – myself included – came to understand what the UDRP was, its flaws and the political and legal struggles that led to its creation. Two of these academics will be attending the conference and I have the honour in being in the same panel with one of them. The first one is Professor Michael Froomkin, whose article ‘ICANN’s UDRP: Its Causes and (Partial) Cures’ provided us with a deep understanding concerning the institutional problems with ICANN and WIPO – the masterminds behind the UDRP’s inception – and the procedural problems with the Policy itself. The second one is Professor Milton Mueller. His account of the UDRP in his article – ‘Rough Justice: A statistical assessment of ICANN’s Uniform Dispute Resolution Policy’ shed light to some very specific procedural problems with the UDRP, e.g. forum shopping, wide interpretation of the bad faith element, bias, etc.

Fast forward ten years later and a lot (and nothing) has happened. For starters, I got my PhD and published my book on the regulation of domain names, which, amongst others, also re-iterated and expanded on those procedural flaws identified by Professors Froomkin and Mueller. Second, ICANN debated and produced what it hopes to be the penultimate version of its Guidebook in relation to new gTLDs, which incorporates new protection mechanisms for trademarks, building upon the model of the UDRP. Trademark owners appeared again in full force, pushing for stronger forms of protection; only this time, they also had as their allies the governments of the world, which ‘bought’ their unsubstantiated arguments that, under the new new  gTLDs, trademarks are not secured on the Internet, thus the strongest possible protection is vital. Moreover, ICANN’s Generic Names Supporting Organisation (GNSO) opened the UDRP brief for review, however, it still very premature to determine its success. And, last but not least, the UDRP has evolved in such a way that it is now a model that has adjudicated more than 45,000 domain name disputes, making the mechanism a legal regime in its own right.

These are some of the issues that I will be raising and discussing in my presentation in Washington in the company of two of my mentors. I hope that my research on domain names and my demonstration of the way the UDRP has altered our understanding of trademark law will constitute a logical extension of the arguments submitted by Mueller and Froomkin almost ten years ago. These are the ‘originals’ as I call them and being part of this group is certainly very thrilling.