The latest GAC Fiasco:the UDRP Letter to the GNSO

Ever since the issue of a potential review of the Uniform Domain Name Dispute Resolution Policy (UDRP) was placed on the table, two camps were created: those advocating against a review – the Intellectual Property Constituency (IPC), some big brand owners and their lawyers and the UDRP accredited centers, who have been basing their arguments on issues of timing. Their main (and only) argument has been that a potential review of the UDRP would upset the current status in the adjudication of domain names and would create instability in the new gTLD environment. The other camp, the non-commercial users, have been advocating that the timing for a review is right, given the fact that the UDRP is one of the oldest ICANN policies and has been operating for more than ten years now. In the comments submitted during the public comment period, the Non Commercial Users Constituency (NCUC) outlined the academic research that has been conducted in relation to the UDRP, its process and its substance. For the past ten years, academic scholars, including myself, have indicated that the UDRP is in serious need for a review and that the system is flawed to the extent that it does not have any checks and balances, it is occasionally biased and it is procedurally flawed. These are not arbitrary accusations, but are based on extensive scholarly research and study.

The ICANN Staff Report that came out in the beginning of August suggested against reviewing the UDRP, but the decision ultimately sits with ICANN’s Generic Names Supporting Organization. One thing that we need to understand, which might assist in also understanding why there is such a great upheaval when it comes to the UDRP, is that there are many interests at stake. The accredited centres do not want to see the UDRP reviewed because for them the adjudication of domain names has become a business. WIPO and the National Arbitration Forum have managed to generate a great deal of business from domain name disputes and many of their panellists have become quite comfortable in earning their living out of the UDRP. For the trademark community, the UDRP has provided the means through which they are able to exert their power over the domain name registration culture and, to a certain extent, control the ownership of names and words used in our everyday vocabularies. At the same time, through the registration of domain names, they have managed to receive international protection for their marks, something that they could not have achieved by following the traditional trademark registration channels. So, I do understand (although I don’t agree nor do I accept it) why these bodies are pushing ICANN not to initiate a PDP on the UDRP.

But, there is something that I do not understand. Only yesterday, a letter sent by the GAC surfaced in the email list of the GNSO. According to the letter, the GAC is asking the GNSO not to proceed to a UDRP review at this stage. “The GAC is aware that the GNSO is considering initiating a Policy Development Process (PDP) for the purpose of reviewing the Uniform Domain Name Dispute Resolution Policy (UDRP). The GAC wishes to convey to the GNSO its view that a decision in favour of such a PDP at the time of launching the new gTLD program would have public policy implications of great concern to the GAC”. I have too many problems with this (initial) statement. First of all, I do not recall another time (and I might be mistaken) when the GAC has sent a letter to the GNSO asking for anything; doing it for the UDRP is quite alarming. But, more importantly, why the sudden interest? Considering that the whole issue of the UDRP started in May, why sent this letter now? The GAC did not participate in the UDRP webinar, did not participate in the Singapore UDRP panel session and did not submit any comments on the issue during the public comment period. Generally, I have never (and mean never) heard any of the GAC members talk or being concerned about the UDRP. So, why now? How did the UDRP become a priority of the GAC?

From what the letter states, it is because the GAC is concerned about the impact on 'public policy'. Yes, you have heard right - again the never-ending public policy argument. But, the idea that the UDRP should not be reviewed due to ‘public policy implications’ is as ridiculous as the idea of the UDRP being a fair system. First of all, this does not make any sense. What ‘public policy implications’ could a review of the UDRP create? Isn’t it a public policy issue the protection of free speech through clear provisions? Is it not an issue of public policy the need to provide to an international system of adjudication with clear checks and balances? These are quintessential issues that any democratic government should seek to protect. So, why doesn’t the GAC strive to secure these fundamental issues on the basis of public policy concerns? Well, the answer appears to be, because the letter did not come straight from the GAC. According to the meta info and the information retrieved from the properties of the word document, the letter was written by a trademark law firm – specifically the US based law firm of Covington & Burling. I am wondering whether the rest of the GAC is aware that their official position on a very important issue concerning the dispensation of rights between trademark owners and domain name holders is coming from a US law firm.

The rest of the letter follows more or less the same arguments we have so far heard from the trademark community: “The new gTLD program will see the introduction of several new rights protection mechanisms. The inevitable uncertainty associated with the introduction of these untested RPMs would be compounded if simultaneously the future of the primary, pre-existing and proven PRM – the UDRP – were also subject to uncertainty as a result of a long-running PDP”. I, personally, never understood this argument, no matter how much I have tried. But, let’s say that I am just dumb - in any event, the first step of a the PDP will not be to change the UDRP – it will be to ask the community to determine whether the UDRP needs to be reviewed. So, there is really no reason to panic or to make such extreme statements, seeking to spread unnecessary fear to the community.

Another interesting point in the letter is the following: “Further, the GAC notes that almost 50% of the country code top level domain (ccTLD) operators have either adopted the UDRP itself or a variant of it, such that any potential changes to the UDRP that could result from a PDP would potentially have broad implication beyond the remit of the GNSO”. Rubbish – even if we accept this figure, why make a review of the UDRP dependant on the stability of these processes? Needless to say that many of these ccTLD operators have taken the UDRP and have created much fairer and more balanced versions of it. Take, for example, NOMINET’s equivalent policy. It started as a copy of the UDRP, but it is currently a policy document that has managed to surpass the UDRP in many ways: it has incorporated clear safe harbour provisions and it has adopted an internal appeals process, providing this way a system with more checks and balances. (The STI actually suggested its safe harbour provisions based on NOMINET's wording). Why was NOMINET allowed to amend and create new provisions within its own body of rules and the UDRP is not allowed to do the same? Wouldn’t the GAC like to see a more balanced, better and fairer UDRP, especially since there is evidence that this can be achieved?

Therefore, this GAC letter to the GNSO only tells us one thing: the same way the trademark community used the GAC to channel its concerns on the STI recommendations, the same way it is using it now to prevent a potential review of the UDRP. But, whereas in the STI recommendations, the GAC had sort of made its own research and sort of knew what it was talking about, in this case the GAC appears clueless and it is embarassing. If the GAC knew the history, process and the various issues of the UDRP, it would realise that not reviewing it has public policy implications (to use their own language) that governments should be concerned with.

So, I would recommend the GAC to go back and read all the academic writing that exists and dates back to 2000. It is really an eye-opener and, in any case, it would help the GAC form its own conclusions and possibly write its own letter.