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4.

WIPO Arbitration and Mediation Center observations to ICANN for Policy Staff/GNSO Council “Current State of the UDRP Webinar” – May 6, 2011

Any invoked “inevitability” of UDRP revision is man-made. Stakeholders should not be naïve about the genesis of the envisaged revision process, nor optimistic about its likely outcome for the UDRP if moved forward: a mechanism tweaked in certain micro ways, but overburdened and diluted as a whole.

Fundamental questions about the business and DNS beneficiaries of cybersquatting must be addressed before targeting the very mechanism intended to address this practice

The spotlight today should not be on the UDRP, but on the persistent practice of cybersquatting. If only for its intended inclusion of the definition of cybersquatting, any revision of the UDRP must be preceded by a transparent examination of this illegitimate business itself.

Instead of allowing the UDRP to be placed in the dock, ICANN should first fairly address the following issues:

  • the relationship between cybersquatting and the activities, revenues and budgets of DNS actors;

  • the incidence of UDRP cybersquatting findings in relation to wider trademark abuse in the DNS overall, with filed UDRP cases merely representing the tip of the iceberg; and

  • the degree of proportionality between trademark rights enforcement and domain name

registration opportunities in the DNS.

The UDRP functions today as the unique result of care invested by many stakeholders over more than ten years, for public and private benefit. WIPO urges ICANN to recognize the overall positive functioning of the UDRP to date, and not to add the UDRP to the issues which ICANN has to manage. Subjecting the UDRP model to a decision process weighted against legitimate IP interests will not produce positive net results for this mechanism, and may have ripple effects across the DNS.

If this UDRP revision effort should go ahead, WIPO will take great interest. However, ICANN revision of the UDRP is a choice, not an inevitability. For a number of reasons, we counsel: don’t go there.

We are posting a copy of these observations on the WIPO website for public information at www.wipo.int/amc/en/domains/resources/icann/.

Thank you for your consideration.

Yours sincerely,

Erik Wilbers Director WIPO Arbitration and Mediation Center

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