Inside ICANNWatch  
Submit Story
Lost Password
Site Messages
Top 10 Lists
Latest Comments
Search by topic

Our Mission
ICANN for Beginners
About Us
How To Use This Site
Slash Tech Info
Link to Us
Write to Us

  Useful ICANN sites  
  • ICANN itself
  • Bret Fausett's ICANN Blog
  • Internet Governance Project
  • UN Working Group on Internet Governance
  • Karl Auerbach web site
  • Müller-Maguhn home
  • UDRPinfo.com;
  • UDRPlaw.net;
  • CircleID;
  • LatinoamerICANN Project
  • ICB Tollfree News

  •   At Large Membership and Civil Society Participation in ICANN  
  • icannatlarge.com;
  • Noncommercial Users Constituency of ICANN
  • NAIS Project
  • ICANN At Large Study Committee Final Report
  • ICANN (non)Members page
  • ICANN Membership Election site

  • ICANN-Related Reading
    Browse ICANNWatch by Subject

    Ted Byfied
    - ICANN: Defending Our Precious Bodily Fluids
    - Ushering in Banality
    - ICANN! No U CANN't!
    - roving_reporter
    - DNS: A Short History and a Short Future

    David Farber
    - Overcoming ICANN (PFIR statement)

    A. Michael Froomkin
    - When We Say US™, We Mean It!
    - ICANN 2.0: Meet The New Boss
    - Habermas@ discourse.net: Toward a Critical Theory of Cyberspace
    - ICANN and Anti-Trust (with Mark Lemley)
    - Wrong Turn in Cyberspace: Using ICANN to Route Around the APA & the Constitution (html)
    - Form and Substance in Cyberspace
    - ICANN's "Uniform Dispute Resolution Policy"-- Causes and (Partial) Cures

    Milton Mueller
    - Ruling the Root
    - Success by Default: A New Profile of Domain Name Trademark Disputes under ICANN's UDRP
    - Dancing the Quango: ICANN as International Regulatory Regime
    - Goverments and Country Names: ICANN's Transformation into an Intergovernmental Regime
    - Competing DNS Roots: Creative Destruction or Just Plain Destruction?
    - Rough Justice: A Statistical Assessment of the UDRP
    - ICANN and Internet Governance

    David Post
    - Governing Cyberspace, or Where is James Madison When We Need Him?
    - The 'Unsettled Paradox': The Internet, the State, and the Consent of the Governed

    Jonathan Weinberg
    - Sitefinder and Internet Governance
    - ICANN, Internet Stability, and New Top Level Domains
    - Geeks and Greeks
    - ICANN and the Problem of Legitimacy

    Highlights of the ICANNWatch Archive
    (June 1999 - March 2001)

    Uniform Dispute Resolution Policy (UDRP) Pressure for UDRP Reform Grows
    posted by Mueller on Wednesday July 03 2002, @05:00AM

    In an effort to kick-start ICANN’s delayed and seemingly moribund UDRP review Task Force, Syracuse University’s Convergence Center released an open-source database and report on the first 3,850 UDRP cases last week. The project, funded by the Markle Foundation, contains some surprising factual findings and interesting recommendations for reform.

    The report “Success by Default” focuses on default rates among various types of complainants and respondents. The default rate was 52% for the study period and seems to have grown since. Default per se is not necessarily a bad thing. The report argues that UDRP has been an effective remedy for cybersquatting primarily because it makes it economically inefficient for abusive registrants to defend their names. Known cybersquatters default (i.e., fail to defend the name) 70 – 100% of the time. For example, the notorious typosquatter John Zuccarini was challenged under the UDRP 61 times and defaulted in 44 (72%) of the cases.

    Unfortunately, many seemingly good faith registrants default, too, and some examples are provided. The degree to which Respondents are able to defend themselves is the single most significant factor in determining the outcome of UDRP cases, with defaulters losing 96% of the time (99% at NAF). The report proposes modifying the UDRP to require Complainants to post a $1,000 bond in addition to the costs of filing a complaint. The refundable bond would discourage merit-less claims and help legitimate Respondents to participate in the proceeding rather than defaulting. If the Complainant wins the case the money would be refunded; if the complaint fails, the money is given to the Respondent to defray the costs of a defense. If the Respondent defaults, the bond is refunded and the procedure should be truncated so that Complainants’ arbitration costs can be further reduced.

    The report’s authors were particularly interested in cases that involve free expression issues. The report identified 85 cases that involve domain names that were either used for or reflect criticism and commentary. It found that these cases are the least likely to involve defaults (only 7%, compared to 52% overall), and that the decisions are inconsistent but often hostile to free speech. One key problem revolves around the standard for a finding of “confusing similarity” to a trademark. Some panelists have shown deference to free expression values while others have concocted bizarre rationales for findings of “confusing similarity” and “bad faith”

    The study calls for resolving this inconsistency in a liberal way. Domain names that signal criticism, parody or commentary upon products and companies (e.g., icannwatch.org) should not be classified as “confusing” unless they are used in ways that actively promote fraud, deception or confusion. Precedents that stretch notions of confusing similarity to include any incorporation of a trademark in a domain name should be repudiated and the policy modified to prevent such findings.

    The report also shows how UDRP panelists (and the parties themselves) rely heavily on “precedent.” A quantitative analysis of precedents cited shows that of the top 20 cases UDRP panelists cite most often, all were won by Complainants. Indeed, 16 of the 20 were Respondent defaults.

    The report indicates that the decision to make the list of “bad faith” factors “without limitation” gives panelists too much discretion and facilitates poor or inconsistent decisions, because they can just make up bad faith factors. The report calls for adding new factors to the list of bad faith items, but limiting the factors to the specified ones.

      ICANNWatch Login  


    [ Don't have an account yet? Please create one. It's not required, but as a registered user you can customize the site, post comments with your name, and accumulate reputation points ("karma") that will make your comments more visible. ]

      Related Links  
  • ICANNWatch.org
  • “Success by Default”
  • UDRP review Task Force
  • Convergence Center
  • open-source database
  • Markle Foundation
    This discussion has been archived. No new comments can be posted.
    Pressure for UDRP Reform Grows | Log in/Create an Account | Top | 59 comments | Search Discussion
    Click this button to post a comment to this story
    The options below will change how the comments display
    Check box to change your default comment view
    The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
    Re: Pressure for UDRP Reform Grows
    by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Wednesday July 03 2002, @07:12AM (#7594)
    User #3359 Info | http://www.ad2000d.co.uk/
    Who was the Report by please?
    [ Reply to This | Parent ]
    Re: Pressure for UDRP Reform Grows
    by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Wednesday July 03 2002, @07:23AM (#7595)
    User #3359 Info | http://www.ad2000d.co.uk/
    I think Msr. Meuller would be better putting more time and effort into dissenting against bad UDRP decisions when serving as a Panelist - this might change his study's percentages a little too!
    [ Reply to This | Parent ]
    Re: Default Wins by Complainants
    by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Wednesday July 03 2002, @07:25AM (#7596)
    User #3359 Info | http://www.ad2000d.co.uk/
    Often it doesn't matter how much time and effort a Respondent puts into his Defence (Response), as many Panelist don't follow UDRP or Forum Rules
    [ Reply to This | Parent ]
    Re: Milton Mueller, Arbitration Panelist
    by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Monday July 08 2002, @01:43PM (#7717)
    User #3359 Info | http://www.ad2000d.co.uk/
    I have to go on record and say I find Milton's failure to dissent in the AIM5.COM NAF so-called decision is bizarre and highly surprising.

    That is my feeling on the matter. I know others may not agree.
    [ Reply to This | Parent ]
    Re: Pressure for UDRP Reform Grows
    by ANNODOMINI2000 (reversethis-{KU.OC.OOHAY} {ta} {D0002DA}) on Monday July 08 2002, @02:13AM (#7696)
    User #3359 Info | http://www.ad2000d.co.uk/
    [ Reply to This | Parent ]
    • 1 reply beneath your current threshold.
  • 2 replies beneath your current threshold.

  • Search ICANNWatch.org:

    Privacy Policy: We will not knowingly give out your personal data -- other than identifying your postings in the way you direct by setting your configuration options -- without a court order. All logos and trademarks in this site are property of their respective owner. The comments are property of their posters, all the rest © 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 by ICANNWatch.Org. This web site was made with Slashcode, a web portal system written in perl. Slashcode is Free Software released under the GNU/GPL license.
    You can syndicate our headlines in .rdf, .rss, or .xml. Domain registration services donated by DomainRegistry.com