Proposals for Limited Procedural Improvements to the UDRP
Proposals to Improve the Efficacy of the UDRP
Key Proposals
Overview of the policy proposals addressing the core issues of the UDRP.
Proposal 1: Appellate level
It is proposed that an appeal procedure be created to assist in rectifying errant single panelist decisions.
View proposal
proposal 2: udrp Companion and ICANN Funding
It is proposed that a pan-Provider “Companion” to the UDRP in the vein of the WIPO Jurisprudential Overview be created. This would build upon existing summaries of UDRP consensus views and would have the added authority of applying across all Providers.
View proposal
Proposal #3: ADDITIONAL Notice of Proceedings
Notice of proceedings is a fundamental aspect of justice. A registrant may not recognize the seriousness of the Provider’s notice of the dispute or may distrust a notice received from an unfamiliar party with various attachments. As a registrant is likely to be familiar with and trusting of notices received from its registrar, it is proposed that the registrar be required to provide notice of the proceeding to its own customer with an explanation that is easily understood by a layperson.
View proposal
Proposal #4: Educational Materials for Parties
If parties are better informed about the evidentiary requirements of the UDRP, it might reduce the frequency of poorly conceived pleadings and thus produce higher quality case outcomes. It is proposed that neutral and standardized educational materials, covering the basic requirements of a UDRP complaint and response, as well as frequently occurring scenarios, be made available in language that is accessible to those who are not trained legal professionals or otherwise have little experience in this field.
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Proposal #5: Expedited Transfer PROCEDURE
It is proposed that an expedited transfer procedure be adopted to reduce the enforcement burden on certain well-known marks that are repeatedly targeted by cybersquatters.
View proposal
Proposal #6: Ensuring the Continued Success of the UDRP
The continued success of the UDRP rests nearly entirely on accredited Providers and there are no assurances that, in the future, an existing or new Provider will not enact internal procedures which negatively affect the UDRP and harm other Providers.
It is proposed that stakeholders and Providers discuss how to best ensure the continued long-term efficacy, quality, and credibility of the UDRP.
View proposal
Proposal #7: Assisting Complainants with GDPR Related Challenges
Complainants face numerous challenges arising from GDPR and the resulting inability to access current and complete historical Whois records. It is proposed that various procedural steps be adopted to assist Complainants in contacting registrants and with identifying repeat cybersquatters.
View proposal
Recommendations Against Adopting Certain Proposed Revisions to the UDRP
Our recommendations against adopting certain possible revisions to the UDRP. Such revisions may attempt to resolve known problems, but in our view these revisions would themselves create more problems than they would solve, and therefore on balance we propose that such proposals not be pursued. We also do not believe that any of these possible revisions would achieve the necessary consensus support and, in the end, would simply waste valuable time in extensive but unproductive discussion. We view such revisions as dead-ends and recommend against them as further explained below.
1. Recommend Against ADOPTING Penalties for Complainants or Respondents
Imposing financial penalties against complainants or respondents would create more problems that it would solve.
View recommendation
2. Recommend against ADOPTING FORMALIZED Mediation
Since informal mediation is available to both parties if they desire, a formalized mediation procedure is not needed and may unnecessarily delay the proceedings.
View recommendation
3. Recommend Against Substantive Policy Changes: For example, changing “AND” to “OR”
The potential for misapplication and the undermining of over 20 years of UDRP jurisprudence are far greater harms than the limited benefit that would result from expanding the Policy to address rare situations where a domain name was registered in good faith and then later repurposed to be used in bad faith.
View recommendation
Procedural Improvements
These are procedural proposals that we believe would improve or solve some of the current issues that practitioners sometimes face. These are not listed in any ranking of importance but address recurring problems.
1. Choice of Registrar Upon a Transfer of a Domain Name
Problem: A Complainant may not wish to receive the transfer of a disputed domain name at the current registrar (i.e., a “push” transfer), especially if the current registrar has limited functionality or is in a foreign language.
Solution: Following a transfer order, require registrars to permit transfer to the Complainant’s registrar of choice upon request. View proposal
2. Ensuring Transfer AFTER A SUCCESSFUL COMPLAINT
Problem: If the losing respondent files a court case in a court that is not the agreed mutual jurisdiction, some registrars may not fulfill their obligation to transfer a disputed domain name following a successful complainant using the justification that there is a court case pending “somewhere”.
Solution: The only permitted “mutual jurisdiction” is the one properly specified by the Complainant in the Complaint. If the complainant prevails and the respondent does not file a challenge under section 4(k) of the Policy in a court of mutual jurisdiction within the permitted time period, the registrar of the disputed domain name MUST timely transfer the disputed domain name to the Complainant as the Complainant so directs, notwithstanding that the respondent may have filed a challenge in court in a location that is not the mutual jurisdiction specified in the Complaint. View proposal
3. Consistent, Clear Rules for Supplemental Filings
Problem: Unclear, inconsistent procedures burden both complainants and respondents leading to the expenditure of time and funds in the preparation of supplemental filings that are often then rejected by the panel. Unclear procedures also raise issues of equity and timeliness.
Solution: A party must request and obtain permission from the Panel before filing a supplementary or additional submission of any kind. View proposal
4. INDEPENDENT Selection of Presiding Panelist
Problem: The appearance of neutrality in selecting the Presiding Panelist is important for the credibility of the Policy. The provider currently hand-curates the five candidates, and could conceivably use that discretion to influence the outcome of the dispute. The five candidates could conceivably be panelists that favor one party or the other and then there would be no way to avoid the selection of a Presiding Panelist whose views are known to favor one of the parties. The provider need not be tasked with this fraught role when a more neutral procedure could be adopted. This would protect the reputation of the provider and the integrity of the procedure.
Solution: It is recommended that an equitable appointment procedure be developed and adopted across all providers. One possible approach would be to rely on the non-presiding panelists selecting the candidates, supplemented if necessary by random selection. View proposal
5. CLARIFYING Three-member panel timelines
Problem: There is no clear, consistent timeline by which a Complainant must pay the additional fee if the Respondent selects a three-member panel.
Solution: Clarify the procedure if a complainant does not make timely payment of the additional fee for a three-member panel. View proposal
6. COMPLAINANT WITHDRAWALS
Problem: A complainant may wish to withdraw its complaint after a response is filed, especially if the complaint was speculative and baseless and the complainant fears an adverse decision. Yet the Respondent has gone to the trouble and expense of filing a response, the Complainant may be deserving of a finding of Reverse Domain Name Hijacking, and the Respondent would be disadvantaged if the dispute is not resolved such that the Complainant might withdraw the complaint and then refile it later.
Solution: It shall be up to the Panel in its discretion, to determine if a Complainant shall be permitted to withdraw its Complaint without the consent of the Respondent, subsequent to a Response having been filed. View proposal
7. ACCURACY AND PROVISION of registration data/Registrar Verification
Problem: The registrar verification providing details about the registrant and the disputed domain name may be unclear, especially as to what the provided date represents. An additional issue is that the registrar verification is shared with the Panel and Complainant but not with the Respondent. This can result in the Complainant and the Panel relying on a misconstrued date while the Respondent is not even aware that such a date has been entered into evidence.
Solution: Registrars should clarify the meaning of the provided date and the registrar verifications should be shared with both parties as part of the case file upon the commencement of the proceeding. View proposal
8. reconsidering the Timeframe to Publish Decisions
Problem: There are often significant delays before a decision is published after the Panel delivers its decision to a Provider.
Solutions: We propose that this time frame be reconsidered based upon the appropriate needs of Providers and of the parties, and that whatever appropriate time frame is agreed upon be strictly abided by subject to exceptional circumstances. View proposal
9. Identify Dissenting Panelists
Problem: If a dissenting panelist is not identified, it is unclear which panelist holds which views. This lack of transparency undercuts the ability of parties to make knowledgeable choices when selecting panelists for a three-member panel.
Solution: Dissenting panelists should be identified in the decision by name. View proposal
10. making decisions available in a machine-readable Format
Problem: The lack of a standard, machine readable format across UDRP providers undermines the transparency of the UDRP and makes reviewing and analyzing decisions more difficult.
Solution: A centralized database of UDRP decisions should be created under ICANN auspices, or alternatively, UDRP providers could make a version of their decisions available in a standard, machine readable format, such as in the JSON or a similar format. View proposal