As many seasoned domain investors are well aware, anyone registering a domain name through an ICANN-accredited registrar is required to accept provisions in the registration agreement stipulating that the registrant must participate in an alternative dispute resolution procedure for third party claims of trademark abuse through their registration and use of the domain. You may know this procedure as UDRP, the Uniform Domain-Name Dispute-Resolution Policy, and it applies to registrations for some of the most popular top-level domains (TLDs) on the internet, including .aero, .asia, .biz, .cat, .com, .coop, .info, .jobs, .mobi, .museum, .name, .net, .org, .post, .pro, .tel, .travel, as well as some country code TLDs.
With new TLDs going live in coming months, the UDRP will be joined by its new cousin, the Uniform Rapid Suspension Procedure, which has a lower burden of proof for trademark owners hoping to disable content on a domain. Lose a trademark complaint brought under one of these dispute procedures and a domain registrant could find their domain transferred to the complainant, cancelled, or otherwise rendered useless.
Intended to help provide trademark owners with a quicker and cheaper solution to cybersquatting, the UDRP has seen a lot of use in the years since its creation by ICANN. This is a legitimate goal, and while no one would support clear cases of cybersquatting, trademark law is complex, nuanced, and limited in several ways. For these reasons and more, the organizations that provide panelists to hear UDRP complaints have sometimes struggled to find consistency in their administration of, and final decisions in, these disputes. A recent post on TheDomains.com highlighted these inconsistencies.
With all that in mind, would you be surprised to learn that ICANN does not maintain, let alone require, contracts with the organizations ruling over the decisions impacting thousands of domain and brand owners? It certainly surprised the Internet Commerce Association (ICA), a nonprofit Sedo helped start in 2006 to advocate for the rights of domain registrants, and which has long sought to place UDRP providers under standard and enforceable contracts. Initially it appeared that ICANN would resolve the issue of missing contracts, but they hastily released an update not long after ICANN Durban in response to concerns about the lack of progress made by ICA counsel Phil Corwin at the meeting this summer. This update took the form of their Status Report on UDRP Providers and Uniformity of Process. In the report, ICANN reversed course and now takes the position that such agreements are not necessary and could actually hinder ICANN's ability to ensure uniformity across UDRP providers.
With their 18th September letter to ICANN's CEO and Board Chairman, ICANN's Business Constituency has now added their voice, requesting that ICANN address:
The inconsistency of its position that contracts for UDRP providers would be counterproductive, despite recent efforts to develop more detailed agreements with domain registries and registrars;
Explain its rationale for placing URS providers under contract but opposing them for UDRP providers (two of which have been named as URS providers);
Why the public was not given an opportunity to comment prior to the report’s release; and
Potential impacts of the report on future efforts to reform the UDRP.
Watch this column for news on future developments.