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What the hell is UDRP?
The term UDRP frequently pops up in stories about ICANN, WIPO and domain disputes, so we figured it was time to give a simple rundown on what precisely it is, why it's important and why we dislike it.
UDRP stands for Uniform Dispute Resolution Policy and consists of a set of rules which help decide who ought to own a particular domain name (e.g. theregister.com) in the case of a dispute over ownership.
It was originally conceived by ICANN - the "non-profit corporation that was formed to assume responsibility for the IP address space allocation, protocol parameter assignment, domain name system management, and root server system management functions previously performed under U.S. Government contract by IANA and other entities" - basically, the people that decide how the Internet's infrastructure is run.
ICANN decided a policy was needed so companies wouldn't be disadvantaged or held to ransom by members of the public who managed to register a certain domain name before the company got there.
UDRP was drawn up to enable trademark holders to retrieve Internet domain names without having to go through a lengthy and expensive legal process. It would only apply to trademark holders taking non-trademark holders to task.
ICANN then selected four organisations to act as arbitrators to any resulting disputes. They are: the World Intellectual Property Organisation (WIPO), based in Geneva, Switzerland; the National Arbitration Forum (NAF), based in Minneapolis, Minnesota, US; eResolution, based in Quebec, Canada; and the CPR Institute for Dispute Resolution (CPRADR), based in New York, US.
UDRP can be seen in its full glory here. We won't gone into the full ins and outs; but basically it comes down to three points that need to be proved by a complainant against a respondent (the current owner of a domain name) for a domain to be handed over.
- That the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
- The respondent has no rights or legitimate interests in respect of the domain name; and
- The domain name has been registered and is being used in bad faith by the respondent
Except - and this a fundamental element of bias in the policy - in the official wording of UDRP, it is not the complainant that is asked to prove the three points, but rather respondents (defendents?) are advised what they need to prove in order for the domain not to be given away.
This may seem like splitting hairs but if you have any understanding of how law works, this small shift in bias has enormous consequences.
Again, we don't want to get into the complexities of the policy (read the articles linked to below for in-depth assessment), suffice to say that it is this intrinsic bias in the policy that has caused many to doubt its effectiveness.
Also, since the system of arbitration rewards decisions made in favour of the complainant, two of the four arbitrators - WIPO and NAF have repeatedly been accused of twisting UDRP towards the trademark holder's favour. It is no mistake, critics say, that these two are also the best known, the richest and most popular.
This situation is further exacerbated by two factors: the fact that under UDRP, the complainant can choose which arbitrator hears the case; and that arbitrators have taken it upon themselves to use previous decisions as a form of case law, so that a decision can be reached with reference to an older decision rather than reviewing each case on its individual merits.
In short, the original UDRP was poorly drafted and enabled those arbitrators chosen to use it in domain dispute cases to subvert it to their finanical and reputational gain.
This situation has long been publicised but the only people entitled to change the policy - ICANN - have never found the time to discuss changes; this has increased fears that the organisation is pandering to the wishes of big business, which supply most of the funds that keep ICANN running.
Also , WIPO and ICANN have been pressuring those in charge of country code domain names like .uk (Britain) or .fr (France) to adopt the UDRP as a universal standard. The new top-level domains such as .info and .biz have had to sign up to UDRP as part of contract for running the domain.
The most significant criticism of UDRP has been written by Michael Froomkin of the University of Miami School of Law. It is currently in pdf format only here. Professor Froomkin kindly sent us a draft of the report in July which we used as a partial basis for our own two-part criticism of UDRP. You can see Part I here and Part II here.
A further critical report, using real decisions as the basis for a study, by Professor Michael Geist from the University of Ottawa can be found here, again in pdf. ®