THE ICANN UDRP - Fairness and efficiency perspectives on the domain name dispute resolution policy.

Abstract: The Internet is a unique medium never before seen and its introduction is probably only rivalled by that of television. It is unique in the sense that every person connected to the Internet has the possibility of interacting with other people across the globe simultaneously. The tools introduced to facilitate this interaction are IP-addresses and domain names. Domain names are connected to the IP-addresses and are what most people associate with the Internet. By using domain names we can easily locate websites originating from our next-door neighbour or the Government of Australia. When the Internet was first introduced not many people thought that it had any future and persons with slightly lower moral standards than the average man, or just those interested in making easy money, started registering the trademarks of companies as domain names. This was of course not acceptable to trademark holders who had spent large amounts on building a reputation for their marks. In 1999 the Internet Corporation for Assigned Names and Numbers (ICANN) introduced a Uniform Domain Name Dispute Resolution Policy (UDRP or the Policy) to combat these abusive registrations. The UDRP is incorporated into the registration agreement of those domain names registered in so called generic Top Level Domains administered by ICANN. A trademark holder who considers his or her marks infringed by a domain name registration may file a compliant with any of the ICANN-approved dispute resolution providers. Either a single panellist or a three-member panel then settles the dispute. This is not a final settlement since either the trademark holder or the domain name holder has the option of taking their case to a national court. This thesis will focus on issues of effectiveness and fairness concerning the UDRP as well as discussing the legal nature of the Policy. Many people would probably label the legal nature of the UDRP as arbitration and it does have much in common with the latter but there are also some features that clearly indicate otherwise, not least the fact that the decision of the UDRP-provider is not final. There are also several procedural issues such as party-autonomy and deadlines that shows that the UDRP is not a clear case of arbitration or anything else for that matter. It does appear that the UDRP is a completely unique dispute resolution mechanism and that such a fact combined with the background of the Policy has much too do with issues of efficiency and fairness. When it comes to determining the efficiency of the UDRP there is no easy way of coming to a conclusion. Efficiency is not properly defined in any of the extensive lists of documents related to the Policy. The only clear indication is in a World Intellectual Property Organisation (WIPO) document that the UDRP is based on. In said document effectiveness was linked to the prevention or reduction of abusive domain name registrations. Whether the UDRP fulfils this criterion or any other possible definition of efficiency is very difficult to determine since material about the number of disputes prior to the introduction of the UDRP are very scarce. Fairness of the UDRP has been a hot spot and source of much controversy between trademark holders and the intellectual property community on one side and domain name holders and Internet-advocates on the other side. Critiques claim that the UDRP is unfair since it gives complainants too much influence over who settles the dispute and that certain providers are biased creating a situation where forum shopping appears. The procedural rules have also been criticised for favouring complainants at the expense of domain name holders. There are certainly indications that the UDRP is unfair in some aspects but it has to be remembered that it was introduced to combat abusive registrations. As such no innocent parties were intended to get caught by the procedure. Despite this certain cases have involved domain names incorporating names clearly beyond the scope of the UDRP. The result is that innocent parties are being caught by rules designed for disputes over abusively registered domain names. Many proposals about how the UDRP could be changed have been presented, some better than others, and most of then concern the selection and composition of the panel that decides the case. Statistics suggest that a three-member panel usually result in a situation where parties win about 50 % each of all cases while complainants win between 70 and 80 % when a single panellist is selected. A mandatory three-member panel has thus been introduced as the most suitable composition. The process for selecting panellists has also generated many proposals but unfortunately most of them do not reduce the original problem of forum shopping. Despite definition problems the UDRP appears to have been a success although it is now in need of a makeover.