What is the Proper Scope of the UDRP? by Nat Cohen

What is the Proper Scope of the UDRP?

by Nat Cohen *

Panelists are regularly making findings that disputes brought before the UDRP are outside of the scope of the UDRP.  What is the proper scope of the UDRP and what causes a dispute to be outside of this proper scope?

The word “scope” does not appear in the Policy.  Paragraph 4(a) states that it is mandatory for any registrant of a domain name to which the Policies applies to submit to an administrative proceeding whenever a complaint is filed against the registrant’s domain name that makes the three enumerated allegations.  They are, in essence, that the complainant has trademark rights, the registrant does not have a legitimate use for the domain name, and that the registrant has registered and used the domain name in bad faith with respect to the complainant’s trademark rights

The scope of the Policy as written is that it applies to every dispute where a complainant files a complaint making these three allegations, with no exceptions noted.  Why is it that panelists are finding that disputes that comply with the requirements of Paragraph 4(a) are nevertheless outside of the scope of the UDRP?

The Development of a Jurisprudence on ‘Outside the Scope of the Policy’

The answer, I believe, is that a consensus has developed among the panelist community that not all complaints making the allegations listed in Paragraph 4(a) are suitable for resolution under the Policy.  The panel in the recent dispute involving <eigglobaltrust.com> and <eigglobalresources.com>, FA2506002163071, August 11, 2025, for instance, are distinguishing between disputes that involve “a straightforward case of cybersquatting” in contrast to more complex disputes where the evidence cannot be adequately assessed using the limited procedures available under the UDRP.

This panel found in part:

On the evidence presented, the Panel is not persuaded that this is a straightforward case of cybersquatting. Rather, it appears to involve a complex factual and legal dispute in which both parties assert plausible claims to the use of the acronym EIG. Such disputes are more appropriately addressed in a court of competent jurisdiction or another forum equipped to hear evidence, test credibility, and determine rights on a full record.

Similarly, in the Termx.org dispute, WIPO2025-1887, also decided August 11, 2025, the Panel found that the dispute was outside of the scope of the UDRP:

The above circumstances clearly exceed the scope of the UDRP Policy, which was conceived for reasonably clear “cybersquatting” cases.  As the above-mentioned open questions show, this case also exceeds the limited tools of the UDRP proceedings, which do not have comprehensive evidence proceeding options (e.g., witness statements) available in court proceedings.  Panels have tended to deny the case not on the UDRP merits but on the narrow grounds that the dispute between the parties exceeds the relatively limited “cybersquatting” scope of the UDRP and would be more appropriately addressed by a court of competent jurisdiction.  WIPO Overview 3.0, section 4.14.6.  The Panel finds this is the case here, as this case exceeds the scope of the Policy and should be addressed before an Estonian court.

As seen in these two decisions, the grounds for finding that a dispute is outside of the proper scope of the UDRP are often because the panels determine that the forensic tools necessary to assess the evidence in a complex dispute exceed the rudimentary tools available under the UDRP.  A court has available to it the tools of depositions and discovery and cross-examinations made under penalty of perjury and sanctions for making false statements, none of which is available under the UDRP.

Panels Admirably Recognizing the Limitations of the UDRP

A panel should be credited with admirable common sense, humbleness, and restraint for recognizing that a dispute is outside of the scope of the UDRP.  This is far preferable to a panel who, despite lacking the tools to properly evaluate the evidence, nevertheless recklessly plunges ahead and risks producing an unjust decision.  To offer an analogy, while a policy may state that it is mandatory for all injuries to be treated according to its procedures, when the patient requires brain surgery and all the policy provides is a bone saw, the proper course of action is to refer the patient to a facility that has the necessary tools for performing brain surgery rather than to pull out the bone saw and to start sawing.

The Relationship of Panelist Developed Jurisprudence to the Policy

As various commentators have noted, panelist developed jurisprudence can supersede the UDRP.  The accumulated guidance found in panelist decisions over the years not only interprets the UDRP but develops into a jurisprudence that is a form of common law.  Gerry Levine highlighted this process in his remarks on Tony Willoughby’s inaugural Levine Lecture, given in Gerry’s honor:

​So, in the absence of the law, what do skillful lawyer/panelists do when all they have is guidance from a code-like set of procedures and rules?  Well, they start a process of interpreting the language of the code.  In other words, they create law and over time their interpretations form a jurisprudence.

​This has been recognized by WIPO Overviews.  In fact, the 2017 version calls itself a Jurisprudential Overview.

As Gerry stated, this panelist developed jurisprudence becomes in effect the law of the UDRP.  Since it is more comprehensive and robust than the Policy itself, it usually serves as the primary source of guidance for the panelist community.  WIPO, as Gerry noted, has periodically undertaken to distill this jurisprudence and to publish it in the form of Overviews.

WIPO’s Jurisprudential Overview 3.0, at section 4.14.6, published in 2017, gives an account of the then current state of the jurisprudence regarding the scope of the UDRP:

4.14.6 Scope of UDRP as grounds for termination

Depending on the facts and circumstances of a particular case, and irrespective of whether the parties may also be engaged in court litigation, in some instances (e.g., complex business or contractual disputes) panels have tended to deny the case not on the UDRP merits but on the narrow grounds that the dispute between the parties exceeds the relatively limited “cybersquatting” scope of the UDRP, and would be more appropriately addressed by a court of competent jurisdiction.

Divergence between the Jurisprudence and the Policy

The jurisprudence described in the Overview regarding narrowing the scope of the UDRP appears to be inconsistent with the language of the Policy as written.  The Policy has no provision for terminating a complaint that is compliant with the requirements of Paragraph 4(a) for being outside of the scope of the UDRP.

Tony Willoughby addressed such concerns in his lecture, stating:

I’m aware that the Overview has come in for criticism, and that panelists are criticized for applying the Overview, rather than the Policy in coming to their decisions.  I’d venture to suggest that it is the looseness of the wording of the UDRP that deserves the criticism, not the Overview.

I take Tony’s point to be that the skeletal policy outline provided by the Policy and the lack of specificity with which the Policy is written are inadequate to provide clear guidance in implementing the Policy such that there is a need for a resource that provides greater clarity, such as the WIPO Overview.

Since ICANN has not convened a process to update the UDRP in the twenty-six years since it was adopted, the panelist community has been left to find its own way.  Panelists have therefore on their own initiative “evolved” the UDRP through considered interpretations of how to best apply it, as Tony Willoughby and Gerry Levine noted.

My own view is that while these reinterpretations are well-intentioned and often beneficial, since the composition of the panelist roster tends to tilt heavily towards brand enforcement attorneys, these views are over-represented and exert disproportionate influence over the evolution of the jurisprudence while those of other stakeholders, notably domain name registrants whose rights are affected by how the UDRP is implemented, are excluded from having a voice in this process.  This can lead to distortions and to a lack of balance in how the jurisprudence has evolved.  Yet this is a topic for another occasion.

What is notable about the development of the jurisprudence regarding the scope of the UDRP is that it does not favor the brand owner bringing the complaint.  The reasons for narrowing the scope of the UDRP are so compelling that even panelists who come from a brand enforcement background consider it the most sensible approach to adopt.

How Frequently are Disputes Found to be Outside of the Scope of the Policy?

The merits of such an approach are so evident that panelists are now regularly finding that complex disputes involving contested facts are outside of the scope of the UDRP.

For illustrative purposes, we can look at a very limited and inadequate sample of the 45 disputes that were denied in July at WIPO, Forum, CAC and CIIDRC.  In eight of these disputes a finding of RDNH was made for the complaint was an abuse of the Policy.  In the other 37 disputes, the Complainant properly made the allegations under Paragraph 4(a) of the Policy that brought the complaint within the scope of the mandatory procedures of the UDRP.  Nevertheless, in eight of these 37 disputes, the Panel found that the dispute was outside of the scope of the UDRP.

These eight disputes involved ola.com (“cannot be used to litigate all aspects of the disputes”), lostmarydirect.com (“beyond the scope of this Complaint, the remedy sought and the applicable law, the Policy.”), elfbar600.bayern (“exceed the typical “cybersquatting” scope of the UDRP”), anantaraclubandresort.com (“exceeds the relatively limited ‘cybersquatting’ scope of the UDRP”), reliancewood.com (“bearing in mind that the UDRP is designed to address clear-cut cases of cybersquatting”), atlanticbeech.com (“These matters, however, extend beyond the purpose of these domain name dispute proceedings.”),  yourhomesoldguaranteedrealty-nancykowalikgroup.com (“thus falls outside of the scope of the UDRP”), and hanaley.com “being able to decide on such a circumstance with adequate procedural guarantees exceeds, in the Expert’s opinion, the narrow scope of the Policy.” [translated from Spanish]).

If the results of this limited sample hold true in general, it suggests that approximately one-fifth of non-RDNH denials are due to the Panels finding that the dispute is outside of the proper scope of the UDRP.

The Current State of the Jurisprudence on “Outside of Scope”

The proper scope of the UDRP is a topic that could benefit from greater attention.  The section cited above from WIPO Overview 3.0 on the topic of the scope of the UDRP reflects the state of the jurisprudence over eight years ago.  It consists of one sentence.  It primarily notes that the scope of the UDRP has become a reason for terminating complaints while provide little in the way of guidance.

The scope of the UDRP is the first topic addressed by UDRP Perspectives (https://udrpperspectives.org/#0_1), co-authored by Zak Muscovitch and Igor Motsnyi  and most recently updated on June 2, 2025.  UDRP Perspectives offers a summary of the most recent UDRP jurisprudence, along with commentary and recent relevant decisions.  As there have been hundreds of decisions addressing the scope of the UDRP since WIPO Overview 3.0 was released in 2017, UDRP Perspectives is able to provide a fuller and more up-to-date treatment of the topic.

As Muscovitch and Motsnyi highlight, the current jurisprudence on the scope of the UDRP is in fact rooted in the deliberations from the late 1990s that led to the development of the Policy itself:

The limited scope of the Policy is confirmed by its legislative history, namely the “Second Staff Report on Implementation Documents for the Uniform Dispute Resolution Policy” (“ICANN Second Staff Report”) 1999, par. 4.1.c. It confirms that the Policy applies to “a small, special class of disputes” and “except in cases involving “abusive registrations” made with bad-faith intent to profit commercially from others’ trademarks (e.g., cybersquatting and cyberpiracy), the adopted policy leaves the resolution of disputes to the courts (or arbitrators where agreed by the parties)…” The “Final Report of the WIPO Internet Domain Name Process”, April 30, 1999 (“WIPO Final Report 1999”) states that the UDRP’s scope is limited to “abusive registrations or cybersquatting” and only to “egregious examples of deliberate violation of well-established rights…” (see par. 160). The limited nature of the UDRP has been highlighted as a “feature, not a flaw” (see ICANN Second Staff Report, par. 4.1.c). The Policy should not be applied inter alia to “good faith disputes between competing right holders or other competing legitimate interests…” or to “domain name registrations that are justified by legitimate free speech rights or by legitimate non-commercial consideration” (see par. 172 of the WIPO Final Report 1999). See also 2.10 of this Document (“Free Speech”).

WIPO and the ICANN Staff report recognized that the Policy is only suitable for a limited scope of disputes that are “egregious” and involve “cybersquatting”.  It was within this context that the UDRP was developed.  That this context did not make its way into the language of the Policy does not make it any less relevant.  Panelists who properly limit the scope of the UDRP are acting consistently with the intentions, spirit and objectives which led to the development of the Policy.

Disputes that in my view have been wrongly decided often are ones that I consider ought to have been found to be outside of the proper scope of the Policy, but unfortunately the Panel lacked the self-restraint and good judgment to make that determination.

More discussion of the proper scope of the UDRP would help clarify the jurisprudence in this area.  This in turn will serve to improve the quality, reliability and consistency of decisions issued under the UDRP.

Article revised on September 7, 2025

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 * About the Author: 

Nat Cohen is an accomplished domain name investor, UDRP expert, proprietor of UDRP.tools and RDNH.com, and a long-time Director of the ICA.