The UDRP's Relationship to National Law
Date: Friday August 22 2003, @06:56AM
Topic: Uniform Dispute Resolution Policy (UDRP)

The folks who promoted and sold the UDRP wanted to set up a free-standing system of intellectual property law that would be created and administered by WIPO, which would be run by and for trademark holders. The reason for this was that pesky legislatures in the US and elsewhere just wouldn't enact sufficiently anti-consumer and anti-civil rights legislation. Rather than accept that a trademark should trump all other rights, these legislatures insisted on passing rules that, although giving trade and service mark holders considerable advantages, nonetheless recognized the existence of competing values and gave defendants the right to a fair trial, with due process, and an unbiased judge.

Of course, even trademark holders -- and especially WIPO, which is nominally responsible to its member states' governments -- couldn't admit that their goal was to overrule (ok, bypass, make irrelevant, whatever you prefer) national legislatures. So the official line was that the UDRP would seek to replicate the results that would be available in national courts, only quicker and cheaper -- which in fact is a perfectly worthy goal.

As a result of this conflict between the overt and covert agenda, much of the tussle over the fine print involved WIPO's continual attempts to sneak in provisions that diverged from national law, or would allow WIPO and/or arbitrators [almost entirely TM corporate counsel] to make up rules that they liked better than the statutory ones. The result is not as bad as WIPO's original draft, but still allows for substantial forum shopping.

OK, now that I've gotten that off my chest, allow me to point out a really interesting-looking paper that I have not yet had time to read, by Prof. Laurence Helfer of Loyola (Marymount) Law School: Whither the UDRP: Autonomous, Americanized or Cosmopolitan? (.pdf).

Here's the abstract:

Recently, assessments of the performance of the Uniform Domain Name Dispute Resolution Policy (UDRP) have stressed the need for institutional and procedural reforms relating to issues such as forum shopping, panel selection, and pleading rules. Far less attention, however, has been paid to a different set of issues critical to assessing the UDRP's performance: its relationship to national courts and to national intellectual property laws. There are three different ways in which this relationship might evolve to change the present structure and functions of the UDRP.

First, the UDRP might be made more autonomous in character, transforming it into a body of non-national rules and procedures distinct from any one nation's laws and largely insulated from review in national courts. Second, the UDRP might become more Americanized by interpreting its substantive rules in harmony with U.S. statutes and case law, and by funneling judicial challenges to panel decisions into U.S. courts. Third, the UDRP might be made more cosmopolitan, enhancing the influence of a diverse array of national laws and legal institutions and generating new modes of interaction among national and non-national legal systems.

This Essay explores these three evolutionary pathways and the critical questions each presents for institutions such as the Internet Corporation for Assigned Names and Numbers (ICANN) and the World Intellectual Property Organization (WIPO), for national lawmakers and national courts, and for those advocating procedural reforms of this new dispute settlement system.

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