WIPO Arbitration and Mediation Center observations to ICANN for Policy Staff/GNSO Council “Current State of the UDRP Webinar” – May 6, 2011
Registration authorities in their own way rely on the UDRP for predictable guidance in implementing external decisions concerning disputed domain names. Such registration authorities are afforded a measure of insulation not only from the dispute resolution process itself, but also from possible court litigation. Of course, ICANN stakeholders themselves also extensively rely on trademarks of their own.
Any destabilization of the UDRP will impact all of these parties.
By accommodating evolving norms and practices, the UDRP has proven to be a flexible and fair dispute resolution system
The overall UDRP framework does not seek to micro-legislate for moments in time. Its non- exhaustive concepts of respondent rights or legitimate interests and bad faith are subject to panel interpretation in light of evolving legal norms and business practices. Similarly, panels have appropriate procedural powers. Building on this flexibility, the UDRP in effect represents the collective wisdom and public stewardship of hundreds of UDRP panelists across jurisdictions exercised over the course of tens of thousands of reasoned decisions.
Examples of practical issues addressed include privacy and proxy registration services, multiple parties and consolidation principles, language requests, consideration of supplemental filings, and suspension procedures to facilitate party-agreed settlement. The list is long, with these and many other issues continuing to be streamlined by UDRP panelists in live cases every day.
In this way, the UDRP has incrementally developed as a public system of jurisprudence over more than a decade. This is illustrated by the recently published second edition of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, which distills broadly-held panel positions on nearly 50 of the most important procedural and substantive issues in over 20,000 WIPO UDRP cases (see www.wipo.int/amc/en/domains/search/overview2.0/). This vast body of published jurisprudence both results from and naturally furthers UDRP stability through time.
With exponential DNS growth around the corner and untested new RPMs in development, this is in any event the wrong time to revise the UDRP
Irrespective of one’s views on its functioning, the UDRP must interoperate with other RPMs being developed for New gTLDs, in particular the URS which also addresses registrant behavior. The URS is as yet unsettled and presents serious issues in terms of its workability; its procedural and jurisprudential interaction with the UDRP remains largely unaddressed. Even if such issues were satisfactorily resolved, this new RPM will need to settle in practice in a DNS expanded by hundreds of TLDs.
The operational UDRP must remain anchored to absorb the effects of this expansion, and it would be highly unwise to risk its destabilization at this time.