Why ICANN's domain dispute rules are flawed: Part I

The history and problems with the policy

The Uniform Dispute Resolution Policy (UDRP) is an exceptionally important Internet process and stands to become all the more important in years to come. It is being adopted by new top-level domains; ICANN and WIPO are pushing it into the wider international arena and country-code TLDs; and the European Union plans to adopt it for the new .eu domain.

On top of that, the draft proposals for the Free Trade Area of the America, recently revealed, include UDRP as the policy for domain disputes across all countries in North, South and Central America.

What is UDRP? Basically, the set of rules that decides who or what has the right to a particular domain name.

However, ever since the first domain disputes cases went through the ICANN system, we have consistently prefixed UDRP with the adjective "flawed". It is time, we figured, to spell out exactly why this set of rules threatens to damage the very fabric of the Internet.


It's important to note that the origin of UDRP was very different to how it has now turned out. ICANN asked WIPO to produce a report on how Internet domain disputes could be quickly, simply and cheaply settled to save the Internet from becoming a huge, litigious no-man's land.

WIPO produced a report, with a range of recommendations, and submitted it to ICANN. There, it was widely discussed and eventually the Uniform Dispute Resolution Policy was formed and approved on 24 October 1999.

The most important aspect to note is that the policy was solely for trademark owners in dispute with non-trademark owners. UDRP specifically refused to rule on personal names, place names, names of pharmaceutical drugs and government organisations. Those names should follow their usual course through the law courts, it was decided, since law varies in different countries.

The full policy was forced onto domain name registrars, which allowed for an effective and fast resolution process across large swathes of the Internet.

Unfortunately, in trying to make the policy as simple and cheap as possible (so ordinary Net punters would not be disadvantaged), several important aspects were overlooked or mishandled. This, coupled with over-zealous arbitrators, has turned UDRP into a deeply flawed, corporate-friendly law that is precariously riding upon its own errors of judgement.

So what the hell are UDRP's flaws?


To our mind there are ten basic problems with the policy:

  1. It does not spell out who the burden of proof falls on
  2. It does not say what evidence is required to prove innocence or guilt
  3. It imposes impossible time limits
  4. A complainant does not need to contact a domain name owner before going to an arbitrator
  5. The complainant decides which arbitrator to go to
  6. There is no appeals process
  7. Arbitrators (WIPO in particular) have extended their rulings into areas of law they have no right to enter
  8. Arbitrators have ignored legitimate ownership of domains
  9. The "bad faith" defence is a nonsense
  10. No one is monitoring UDRP

We'll cover the first five in greater depth here and the second five in a second part (save making this too long):

  1. It does not spell out who the burden of proof falls on
    In any civilised court, the decision lies with the accuser to prove that a person did what they say they did. Hence "reasonable doubt" in murder trials for example. This is a cornerstone in most law courts and as such is automatically presumed to be the case in arbitration decisions. It is, however, not explicitly stated and the last two years has seen a relaxation in what should be a hard and fast rule.

    [As several readers have rightly pointed out, this is for criminal courts only and civil courts work on a "balance of probabilities". Despite this, the point holds that UDRP does not provide an effective method for deciding guilt or innocence. Arbitrators are also guilty of ignoring the provisions that are in UDRP.]

  2. It does not say what evidence is required to prove innocence or guilt
    Again, a seemingly unimportant point but one of extraordinary import. Without a set approach to how the rules can be proven one way or the other, decisions made by judges are likely to vary hugely and so damage the creation of case law. It is also makes it far harder for a registrant to respond effectively to a challenge (see next point).
  3. It imposes impossible time limits
    The idea was that UDRP would be a fast mechanism for sorting out disputes. However, the 20-day reply period listed in the policy is ludicrously short. Worse than this, the 20-day countdown starts as soon as the arbitrator hears of the complaint - not the person that actually owns the domain.

    This means that if you aren't contacted by the complainant beforehand and then you don't check your email for a few days, you may only have a few days to: appoint a lawyer; write and submit your entire defence; and collect all the relevant evidence and documents you have (note no guidelines from above). On the other hand, the trademark owner will have had months to prepare.

    This puts all the pressure on the domain name owner. Also, in some hard-fought for cases, the arbitrator has refused further evidence from the defendant, despite it being extremely relevant, because the deadline had passed. Connected to this:

  4. A complainant does not need to contact a domain name owner before going to an arbitrator
    The first time someone may hear of a case is when the arbitrator email arrives in his inbox. Trademark holders have no need to contact a domain owner before going ahead. This is clearly daft and a court of law would take a dim view of someone going to court before attempting to sort out a dispute with someone in person - or even inform them of what they intended.

    Those that do contact domain name holders may also use it against the holder in a future case - there's a bit more of that in the point on bad faith (number nine).

  5. The complainant decides which arbitrator to go to
    This may seem fairly harmless since arbitration is mostly done over the Internet. However, due to the way the arbitration market has panned out, this simple choice has led to more inequality in domain dispute resolution than almost anything else.

    Arbitration has become big business. Thousands of cases are decided every year and money is taken for every one. Being the lead arbitrator for Internet domain names in a market of just four also provides a fair amount of power. Not to mention publicity when a high-profile case comes up.

    All of this has - and will continue to - give arbitrators a heavy incentive to rule in favour of complainants. The more decisions in favour, the more people will turn to you, the more money. This unchecked situation has resulted in some appalling decisions that have overriden not only UDRP but also international trademark laws.

    There was also recent evidence in which, due to a number of decisions made against AOL by WIPO, the massive Net conglomerate turned to alternative arbitrator NAF to rule on Aimster.com. NAF promptly amazed all and sundry by deciding for AOL on the ridiculous pretext that the word "aim" at the start of the domain stood for "America Online Instant Messenger" - and that no one would think any differently.

    On top of this, arbitrators can decide themselves what judges they assign to what cases. There have been many calls for transparency in this system but so far nothing has happened. It is a fact that certain judges have been handed over 200 cases and have consistently ruled in favour of trademark holders. Other judges - on the books for an equal time - that have ruled against complainants have been on as few as ten cases.

Although not endorsed by him, special thanks goes to Michael Froomkin, who teaches at law in Miami and runs ICANNwatch, for his help and the supply of an as-yet unpublished document on UDRP.

Related Stories

Part II of the UDRP review is here
AOL wins rights to Aimster domain name

Other stories you might like

  • These Rapoo webcams won't blow your mind, but they also won't break the bank

    And they're almost certainly better than a laptop jowel-cam

    Review It has been a long 20 months since Lockdown 1.0, and despite the best efforts of Google and Zoom et al to filter out the worst effects of built-in laptop webcams, a replacement might be in order for the long haul ahead.

    With this in mind, El Reg's intrepid reviews desk looked at a pair of inexpensive Rapoo webcams in search for an alternative to the horror of our Dell XPS nose-cam.

    Rapoo sent us its higher-end XW2K, a 2K 30fps device and, at the other end of the scale, the 720p XW170. Neither will break the bank, coming in at around £40 and £25 respectively from online retailers, but do include some handy features, such as autofocus and a noise cancelling microphone.

    Continue reading
  • It's one thing to have the world in your hands – what are you going to do with it?

    Google won the patent battle against ART+COM, but we were left with little more than a toy

    Column I used to think technology could change the world. Google's vision is different: it just wants you to sort of play with the world. That's fun, but it's not as powerful as it could be.

    Despite the fact that it often gives me a stomach-churning sense of motion sickness, I've been spending quite a bit of time lately fully immersed in Google Earth VR. Pop down inside a major city centre – Sydney, San Francisco or London – and the intense data-gathering work performed by Google's global fleet of scanning vehicles shows up in eye-popping detail.

    Buildings are rendered photorealistically, using the mathematics of photogrammetry to extrude three-dimensional solids from multiple two-dimensional images. Trees resolve across successive passes from childlike lollipops into complex textured forms. Yet what should feel absolutely real seems exactly the opposite – leaving me cold, as though I've stumbled onto a global-scale miniature train set, built by someone with too much time on their hands. What good is it, really?

    Continue reading
  • Why Cloud First should not have to mean Cloud Everywhere

    HPE urges 'consciously hybrid' strategy for UK public sector

    Sponsored In 2013, the UK government heralded Cloud First, a ground-breaking strategy to drive cloud adoption across the public sector. Eight years on, and much of UK public sector IT still runs on-premises - and all too often - on obsolete technologies.

    Today the government‘s message boils down to “cloud first, if you can” - perhaps in recognition that modernising complex legacy systems is hard. But in the private sector today, enterprises are typically mixing and matching cloud and on-premises infrastructure, according to the best business fit for their needs.

    The UK government should also adopt a “consciously hybrid” approach, according to HPE, The global technology company is calling for the entire IT industry to step up so that the public sector can modernise where needed and keep up with innovation: “We’re calling for a collective IT industry response to the problem,” says Russell MacDonald, HPE strategic advisor to the public sector.

    Continue reading

Biting the hand that feeds IT © 1998–2021