It is amazing to me how non-uniform the decisions issued under the Uniform Domain Name Dispute Resolution (UDRP) procedure can be. I have handled many of these disputes, with a substantial degree of success, but the lack of uniform, predictable decisions still concerns me. ICANN (the Internet Corporation for Assignment of Names and Numbers) has received numerous complaints regarding the lack of fairness in the process, but incremental changes (if any) have been the result.
I have not seen any outright bias or conflict of interest in the dispute resolution process, at least yet, and I think the panelists appointed to determine disputes over ownership of domain names try to do their best. They are certainly required to be impartial. (See UDRP Rule 7 – “A Panelist shall be impartial and independent and shall have, before accepting appointment, disclosed to the Provider any circumstances giving rise to justifiable doubt as to the Panelist's impartiality or independence.”) In all fairness to ICANN, with a global dispute resolution process such as this one, there will always be a certain degree of non-uniformity in the process. It certainly exists in the courts, so we should not hold WIPO or NAF (the two non-Asian arbitration organizations that handle UDRP disputes) to a different standard. However, the amount of contradictory opinions involving almost identical domain names and arguments can be shocking. The unfairness of the situation is enhanced by the absence of an effective appeal process.
Many suggestions to make fundamental changes to, or eliminate altogether, ICAAN have been advocated, and each one would have a massive impact on the ways that disputed ownership of domain names are determined. These include letting the US Government perform ICANN's tasks directly, assigning ICANN's tasks − including administration of the UDRP − to the International Telecommunication Union, and creating a new non-profit organization to take over for ICANN. I think I would rather have to deal with the U.S. government than the ITU, but that's not a ringing endorsement of either option. A new non-profit entity would be faced with the same challenges regarding domain name dispute resolution as ICANN. The problem lies with a lack of clear direction, akin to stare decisis in the common law, establishing concrete substantive principles under the UDRP, coupled with the absence of an effective appellate process. To contact experienced legal professionals please visit our website.
Murray Camp
(214) 979-0100
mcamp@tiptonjoneslaw.com
