On Monday, November 3rd it became public knowledge that WIPO intends to propose a “fast track” UDRP process before the end of 2009. Following a 30-day public comment period, WIPO expects to implement the new process in the first quarter of 2010. While early details are sketchy, the information available indicates that the filing fees for this process will be substantially lower than the regular UDRP track, which could encourage a far larger number of case filings if there are not adequate sanctions for complainant abuse. It also appears that the fast track process will extend beyond cases in which the registrant defaults by failing to file a response, as fast track panelists will apparently be able to utilize the expedited process even where the domain registrant files an answer. WIPO is asserting that it can adopt and implement this new process by simply amending its Supplemental Rules without obtaining authorization from the ICANN Board.
ICA is very concerned that the proposal will severely prejudice the due process rights of registrants notwithstanding WIPO’s contention that all respondent rights will be preserved. We also believe that WIPO may be exceeding its authority to adopt supplemental technical rules for administrative aspects of the UDRP. If WIPO is permitted to take this action without obtaining ICANN consent then other UDRP administrators are likely to follow suit – and to consider even more extreme UDRP alterations in a race to the bottom competition to attract forum shopping complainants at registrants’ expense.
Given the ICANN Board’s recent decision that the very similar proposed Uniform Rapid Suspension (URS) process for new gTLDs was a substantial policy matter requiring further review by the Generic Names Supporting Organization (GNSO) it is difficult to regard this fast track initiative as a mere technical adjustment of the UDRP process. This unexpected announcement also threatens to disrupt the work of the just constituted Specific Trademark Issues Recommendation Team (STI-RT), in which ICA is participating, and to prevent it from reaching consensus on an expedited and lower cost rights dispute mechanism that retains balance and preserves essential registrant rights.
Given the stakes for domainers as well as for the integrity of ICANN’s bottom-up consensus policymaking process, ICA is analyzing all available information on this matter with an eye toward taking decisive and effective action to protect and preserve the rights of our members. We expect to announce further details of our response plans within the next few days.