UDRP: Better Late than Never – ICA Applauds WIPO for Removing Misguided ‘Retroactive Bad Faith’

The Internet Commerce Association (ICA), a non-profit trade group representing the domain industry, applauds the World Intellectual Property Organization (WIPO) for removing misleading guidance from the newly released updated version 3.0 of its Overview of WIPO Panel Views on Selected UDRP Questions that in the previous version had granted undeserved legitimacy to a misconstruction of the UDRP commonly known as the Retroactive Bad Faith theory.

WIPO’s Overview of WIPO Panel Views on Selected UDRP Questions is widely looked to by panelists for guidance and therefore exerts considerable influence over how the UDRP is implemented. It is, therefore, crucial that the Overview accurately reflects views that are actually consensus views based upon analysis of past UDRP cases. As discussed in the ICA’s paper, The Rise and Fall of the UDRP Theory of ‘Retroactive Bad faith’ (May 8, 2017, CircleID), WIPO’s Overview 2.0 for some time has caused considerable damage as a result of its misleading guidance. Now that WIPO has properly omitted the misleading guidance related to so-called ‘retroactive bad faith’, for the sake of the fair and uniform application of the UDRP, the ICA trusts that the Retroactive Bad Faith theory shall now be rejected by all panelists and will not be employed by future complainants nor considered by future panels.

It is regrettable that WIPO has chosen not to revise the procedures that produced the flawed Overview 2.0 by incorporating more perspectives into the development of the Overview. The perspective of domain registrants who are the ones harmed by the flawed Overview 2.0 is noticeably absent. The ICA offered its constructive involvement in the development of Overview 3.0 in a letter sent to WIPO in March of 2017, yet did not receive the courtesy of a reply. An initial review of Overview 3.0 raises continuing concerns that some of the guidance does not reflect consensus views and is drawn from a small sample of non-representative cases. The ICA will provide further comment after it has the opportunity to conduct an in-depth review.

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