As reported in the May 2011 edition of Anchovy News, the Generic Names Supporting Organisation (GNSO) Council has asked ICANN to prepare an Issue Report on the current state of the Uniform Domain Name Dispute Resolution Policy (UDRP). The Report will be used to help the Council decide whether to commence a Policy Development Process (PDP).
The UDRP has not been reviewed since it was introduced in 1999 as an alternative to costly and lengthy litigation for resolving disputes involving domain name cybersquatting. To determine whether the UDRP should be revised, the GNSO Council has requested information on how the UDRP has addressed the problems of cybersquatting to date and any inequalities/insufficiencies associated with the process, as well as whether the definition of cybersquatting contained within the existing UDRP language needs to be reviewed or updated. ICANN has conducted research on these points and, in addition, the GNSO Council has convened a drafting team which used a recent webinar held by ICANN and a questionnaire sent to UDRP providers to elicit information from the community on the current state of the UDRP.
The article entitled “Current State of the UDRP – if it ain’t broke, don’t fix it?” (Anchovy News, May 2011) summarised the issues raised during the webinar held on 10 May 2011. Representatives from a broad cross-section of the community were invited to speak and comment on the UDRP in order to gauge whether the community felt that it should be revised. The comments made were then used to prepare a Preliminary Issue Report, which was published on 27 May 2011, and shape ICANN’s recommendations on the UDRP. A period of public comment, during which the community has a chance to respond to and comment on this document, is now underway and is due to end on 15 July 2011. Comments made will impact on the Final Issue Report on the UDRP, which will be published after the closing of the public comment forum.
In addressing the GNSO requests, the Preliminary Issue Report points out that the UDRP has evolved over time to become an internationally respected and effective alternative to litigation. In general, it is considered to be a fair and flexible dispute resolution mechanism, with only rare instances among the tens of thousands of UDRP decisions having been successfully challenged in court. The Report also notes that the internet community has come to rely on the transparency, predictability, and consistency associated with the UDRP.
The Report summarises the issues in respect of the UDRP raised during the webinar and in the UDRP provider questionnaires, and then categorises them as policy or process issues. Policy issues include the lack of an appeals process and a possible change in the bad faith requirement whereby “and” would be replaced with “or” in the standard: “your domain name has been registered and is being used in bad faith”. The process issues are broad in scope and include the need to extend the response time, the problem of multiple complaints against a single respondent and uniform application of rules by providers. Few substantive problems with the policy itself are mentioned; most of the issues raised and suggestions for change put forward concern process difficulties. The Report incorporates a number of comments made by participants in the webinar and in the questionnaires, including the feeling that now is not the right time to review the UDRP and that opening it up to a PDP may ultimately undermine it, a concern highlighted by a number of people.
On the basis of these findings, the Report concludes that although this matter does fall within the scope of the GNSO’s mandate, initiating a PDP at this time is not recommended. Whilst there was some divergence from this viewpoint, the recommendation is largely in line with the approach of the community representatives who spoke during the webinar.
The Report does, however, suggest an alternative approach, should the GNSO Council believe that review of the UDRP is necessary. In view of the fact that many of the issues relating to the UDRP are procedural issues concerning implementation of the UDRP rather than problems with the actual wording, ICANN suggests that the GNSO Council could convene a small group of experts to improve the process or implementation of the UDRP. Such expert recommendations could result in modifications to certain UDRP Rules or changes to provider Supplemental Rules, which could be adopted without the need to resort to a PDP.
Finally the Report mentions that if, after considering the expert recommendations, the GNSO Council still wishes to carry out a more extensive review of the UDRP, or, indeed, if the expert recommendations indicate that more substantive changes are necessary, a PDP could then be commenced at that point.
In conclusion, the Preliminary Issue Report is firmly against a PDP at this point. The public comment forum is now open and the community has until 15 July 2011 to respond. After the 15 July deadline, the Final Issue Report will be published and the GNSO Council will vote on whether or not to commence a PDP. We will update you on this process in future editions of Anchovy News.
To read the Preliminary Issue Report and submit comments, please go to: www.icann.org/en/public-comment/#prelim-report-udrp
This article was written by David Taylor head of the Hogan Lovells domain name practice Anchovy and Jane Seager, Counsel in the firm’s Paris office.
For more information on David Taylor, see www.hoganlovells.com/david-taylor or email him at firstname.lastname@example.org. For more information on and contact details for Jane Seager, see www.hoganlovells.com/jane-seager.