ICANN to Hold Webinar on Current State of the UDRP

On Tuesday, May 10th ICANN will hold a webinar on the Current State of the UDRP. Details can be found at http://icann.org/en/announcements/announcement-21apr11-en.htm; those who wish to participate need to send an e-mail to gnso.secretariat@gnso.icann.org to receive the details. The Webinar will last for two hours and commences at 15:00 UTC (11 am Eastern time in the USA; check http://www.timeanddate.com/worldclock/converter.html for time conversion to your locale).

As described in the ICANN announcement –

The webinar will explore the current state of the UDRP. Attendees will hear the viewpoints from experts in the field on the effectiveness of the UDRP, and whether it should be modified or amended. This webinar is designed to solicit current information and data on the UDRP for reference in an Issue Report to be published by Staff. UDRP providers, panelists, attorneys and other observers of the UDRP process will be invited to share their perspective on this key ICANN policy.

The UDRP has not been reviewed by the GNSO Council since its adoption. The Issue Report will speak to how the UDRP has addressed the problem of cybersquatting to date, and explore any insufficiencies or inequalities associated with the process. This Issue Report will then be considered by the GNSO Council as it decides whether to commence a new policy development process (PDP) on the UDRP.

As we understand it, each UDRP provider (WIPO, NAF, etc.) will be allocated time to speak during the program, and is also being asked to recommend four persons – two arbitration panelists, one attorney who regularly represents complainants, and another who regularly represents registrants) – from which additional speakers will be selected. We have heard that some of the best-known UDRP registrant attorneys are being recommended and we hope that the final speaker selection comprises a balanced spectrum of expertise. The Preliminary Issues Report resulting from the Webinar is supposed to be ready in time for discussion at a dedicated session at ICANN’s June meeting in Singapore, and that in turn will lead to a Final Report for consideration by the GNSO Council. Any resulting PDP would likely take a year or more to hammer out recommendations for consideration by the ICANN community and, ultimately, the Board.

ICA is very supportive of the initiation of a UDRP reform PDP. In fact, we have consistently called for such a process throughout the development of the Applicant Guidebook for new gTLDs, contending that the best way to address the legitimate concerns of both rights owners and domain registrants is through a balanced and orderly UDRP reform process rather than via jerry-built “solutions” like the URS (Uniform Rapid Suspension) that only apply to new gTLDs. After all, the aim should be to have uniform rules across the DNS, not different standards for incumbent and new gTLDs.

We also believe that a substantial portion of beneficial UDRP reform can be achieved procedurally through the establishment of a standard contract between ICANN and UDRP arbitration providers, rather than by making major substantive changes to the UDRP standards. We find it amazing, and quite worrisome, that ICANN – which can only exercise its authority via contractual arrangements – has authorized various entities to transfer domains absent any contractual standards or constraints. Such a standard contract could establish uniform standards for panelist impartiality, criteria to better assure consistency of decisions among different arbitration providers, and firmly limit the scope of providers’ supplemental rules to purely clerical matters. We don’t think any radical re-write of the UDRP standard itself is needed or justified, but after more than a decade of use we certainly have enough experience to inform some beneficial fine-tuning if that turns out to be justified.

Trademark interests, on the other hand, seem suspicious of any UDRP reform process, and of course have heavily lobbied the GAC to seek last-minute “rights protections’ for new gTLDs that go substantially beyond the recommendations of the Implementation Recommendation Team (IRT) and that would gut the more balanced approach hammered out by the Specific Trademark Issues-Recommendation Team (STI-RT). That’s exactly the kind of one-sided, ill-considered, backdoor changes meant to influence the UDRP for incumbent gTLDs that ICANN should not countenance. WIPO and groups like CADNA have been resistant to comprehensive UDRP reform – which is a good indication that registrants may have more to gain than to lose in the process, although registrants should expect that if reform is launched trademark interests will try to tilt the UDRP balance in their favor.

ICA plans to actively participate in the Webinar, in the Singapore session, and in any ensuing UDRP reform process. Registrants constantly gripe about the lack of consistency in UDRP decisions and such weaknesses as the lack of effective sanctions for attempted reverse domain name hijacking – so if you have concerns about the UDRP, this Webinar is a great opportunity to start making them known to the people with the power to respond to them.