WIPO Arbitration and Mediation Center observations to ICANN for Policy Staff/GNSO Council “Current State of the UDRP Webinar” – May 6, 2011
Institutionally stacked, an ICANN revision process would likely end up overburdening and diluting the UDRP
Following a series of nearly twenty international consultations involving experts from around the globe, WIPO’s recommendations in the Final Report of this First WIPO Internet Domain Name Process provided the blueprint for the UDRP. ICANN, which at that time had only just been formed, adopted this UDRP model in late 1999. Since then, significant numbers of ccTLD registries have also adopted dispute resolution policies based on that same model.
Between 2000 and 2003, several ICANN efforts have looked into the possibility of amending the UDRP, without producing any agreed basis for constructive movement. The only positive change occurred in 2009, when ICANN adopted WIPO-designed amendments to the UDRP Rules to facilitate paperless pleadings.
Some ten years after the UDRP’s inception, trademark owners are now being asked to buy into an unprecedented registration-driven DNS expansion. At the same time, certain of those registration interests, joined by other ICANN stakeholders, are advocating that the UDRP be investigated.
If interests under the ICANN umbrella do not share the wide recognition of the UDRP as an overall success and rather believe it warrants revision, it would seem incumbent upon those interests to advance a transparent rationale for their views and articulate a coherent alternative model.
Of course, from an IP rights holders’ perspective, there are numerous ways in which the UDRP might be amended. It could operate on condensed timelines and default decisions. Its scope could extend beyond trademark rights, and more recent bad-faith scenarios recorded. Calls have been made for damages options and ‘loser pays’ models. The UDRP could also be expanded to address certain forms of intermediary behavior. Other interests are on record with wish-lists that apparently include the UDRP definition of cybersquatting itself.
On its part, based on unparalleled experience, WIPO has deep insight into practical options for UDRP modification. However, the process and timing must be right. Any responsible effort to reconstruct the UDRP framework cannot be rushed, but ought rather to be the balanced result of serious, appropriately resourced, expert deliberations, grounded in a constructive vision for the UDRP.
The anticipated ICANN process does not inspire confidence that it would meet these standards. Even when it comes to trademark policies, IP institutionally appears to occupy only a minor ICANN role. Indeed, the more vocal advocacy observed thus far does not suggest a desire to enhance the UDRP’s effectiveness as a rights protection vehicle. The present state of the URS illustrates the risks of subjecting an RPM to recycled committee processes, open-microphone lobbying and line-item horse-trading.