Study Documents Provider Biases in ICANN-UDRP Arbitrator Selection
Date: Monday August 20 2001, @03:23AM
Topic: Uniform Dispute Resolution Policy (UDRP)

Professor Michael Geist today released Fair.com?: An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP, a study documenting bias in the way most arbitration providers administer the ICANN UDRP. Prof. Geist is an authority on Internet law at the University of Ottowa, an elected member of Canadian Internet Registration Authority (CIRA), and the editor of BNA's Internet Law News.

As Giest summarizes it, "the study reviewed all 3094 ICANN UDRP decisions (through July 7, 2001) and found that when providers control who decides a case (which they do for all single panel cases), complainants win just over 83 percent of the time. When provider influence over panelists diminishes, which occurs in three-member panel cases, the complainant winning percentage drops to 60 percent. In addition to the dramatic difference in outcome between single and three-member panels, the study finds that case allocation appears to be heavily biased toward ensuring that a majority of cases are steered toward complainant-friendly panelists. As of July 7, 2001, an astonishing 53% of all NAF single panel cases (512 of 966) were decided by only six people. The complainant winning percentage in those cases was an astounding 94%. WIPO, meanwhile, has failed to assign even one of its 1629 single panel cases to at least two panelists perceived to be pro-respondent. Of the 104 WIPO panelists to have decided five or more cases, all but one have complainants winning at least 50% of the time."

Geist also writes, "In conjunction with the release of the study, I have ported much of the collected data to the Web. Udrpinfo.com features a searchable database of the track record of individual panel members with more features to come."

ICANN's UDRP review is crawling slowly forward; the review task force has yet to meet. Unless something extraordinary happens, it will be months -- at least -- before ICANN does anything to address the problems Prof. Geist has identified. Interestingly, Prof. Geists's work suggests that one quick fix would be to abolish single member panels -- three person panels appear less biased than single arbitrator panels, if only because the provider has much more power to manipulate the composition of a single member panel.

[Disclosure: I've sat as an arbitrator on 3-person panels for e-Resolution, WIPO, and NAF. I also am affiliated on an unpaid basis with one of the arbitration service providers (eResolution) -- the one that Geist says doesn't show the evidence of bias found most heavily at NAF but also at WIPO. This lack of bias may explain why complainants pick eResolution much less often than they pick NAF or WIPO... ]

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Re: Study Documents Provider Biases in ICANN-UDRP
by fnord (groy2kNO@SPAMyahoo.com) on Monday August 20 2001, @08:19PM (#1964)
User #2810 Info
Reuters coverage via Yahoo including a NAF response.

Michael, is the panelist paid less if it is a default judgement?

This also gives me the opportunity to point out something I found strange while researching the armani.com case. IANAP but it seems like double jeopardy with the case(s) [1, 2] of armaniexchange.net, or an appeal route I wasn't previously aware existed. I wonder how a losing respondent could have an equal right to a second hearing, when a second hearing appears to only be triggered by a 're-filing'. Oh, and money of course. -g

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Re: Study Documents Provider Biases in ICANN-UDRP
by LawGeek (mcd@NOSPAM.pair.com) on Tuesday August 21 2001, @02:43AM (#1967)
User #2921 Info
Perhaps this study wouldn't be so concerning (if one is ready to accept the proposition that most of the cases brought under the UDRP are examples of "cybersquatting"), except for the fact that UDRP panelists seem to have virtually no understanding of US trademark principles whatsoever.

It is absolutely ridiculous what these fools get away with and pass off as supportable under existing trademark law. True, the UDRP is a rule system in itself and is not perfectly congruent with US trademark law, but it incorporates verbatim certain important principles which have been defined by judges.

In any event, the UDRP sets up a system of "justice" that is so horridly crippled in its ability to be self-correcting, consistent, or fair, that this concrete news of bias/forum-shopping is incredibly frightening.

And, of course, there's always the alleged review of the UDRP that ICANN claims to be doing, but that we all know will be about as forthcoming and timely as a Microsoft review of its anti-competitive behavior.

MD
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Re: Study Documents Provider Biases in ICANN-UDRP
by MF_Inc on Tuesday August 21 2001, @08:26AM (#1970)
User #3001 Info
The UDRP Needs MAJOR Reform.

I am very pleased to see this newly-released report by Michael Geist. Several months ago, I got a very embittering crash-course in the UDRP process. The conclusion I arrived at is that the UDRP needs MAJOR REFORM. I am the registrant of the Tobacco.com domain name. I have been since 1995. Earlier this year, I received a "cease and desist" letter from a "company" calling itself "Tobacco.com, Inc.". This "entity" was nothing more than a bogus (as in fraudulent) culmination of several pieces of filled-out paperwork, in an attempt to superficially "legitimize" themselves. They attempted to reverse domain name hijack Tobacco.com, by way of their filing a UDRP against myself. To make a long story short... I immediately sought Counsel with John Berryhill, an expert-attorney in the area of trademark law and, one who has a great deal of experience with UDRP defense work. Seeking John Berryhill's aid was the best thing I could have possibly done in this case. On May 18th of this year, they withdrew their complaint against myself. (After seeing my response and realizing their fraud was easily uncovered.) My complaint, then? The UDRP makes it ALL TOO EASY for frivolous and fraudulent complaints to be brought forth. This means the UDRP can easily be used to effectively harass domain name registrants. I spent nearly $3500 defending myself against fraud which, if the UDRP was more intelligently crafted, would have never even been considered as a legitimate case. Personally, I think that generic terms (such as "tobacco") should be completely exempted from UDRP process. To add insult to injury, the NAF (the arbitration panel which was selected to hear the case) ended up keeping my $1250 three-person panel fee, EVEN THOUGH THE PANEL NEVER SAT! To me, that is criminal activity on the behalf of the NAF. ( The Register published a news item on this, specifically, at : http://www.theregister.co.uk/content/archive/19217 .html ) I decided to organize all information related to my case, and publish my findings online. I only hope that what I've assembled can serve to help others who face UDRP injustices. The casework can be seen at : http://Tobacco.com/attempted-hijacking

Warmest Regards, Michael Fischer
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