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    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.


     
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    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
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    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/
    Yup
    [ Reply to This | Parent ]
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