May, 2001
Since December 1999, the World Intellectual Property Organization, WIPO, has been providing mediation and arbitration services to solve disputes arising from the use of domain names on the Internet.
The WIPO services are
supported by a decision from the Internet Corporation for Assigned Names and
Numbers (ICANN), which on August 26, 1999, adopted uniform rules to solve
domain name disputes (the Uniform Domain Name Dispute Resolution Policy), known
as the UDRP procedure, whose specific rules were approved on October 24, 1999.
There are four dispute
solving service providers that follow the said ICANN's rules, namely:
-
WIPO
-
E-Resolution
-
CPR Institute for Resolution
- National Arbitration Forum
May be because it is an international organization, the WIPO has taken most of cases presented so far. During 2000, the WIPO has reviewed 65% out of all cases presented under ICANN's UDRP rules. On the other hand, each dispute solving service provider has set what is called as supplementary rules, which usually have administrative and logistic conditions, that is, they deal with specific administrative procedures, tariffs, etc.
In brief, the UDRP rules
provide the following procedure. When a complaint is notified, the respondent
has 20 days available to reply. Once
the WIPO has received respondent's reply, the period to appoint the panel of
arbitrators that will solve the case starts. The WIPO has more than 180
arbitrators. Arbitrators must sign a declaration of impartiality and
independence, as a previous step to be accepted as an arbitrator for a certain
case. When the panel of arbitrators takes a decision in favor of the
complainant (which usually consists in a petition to transfer the domain name
in dispute), such decision shall be executed within 10 days, and the entity in
charge of registering domain names is ordered to execute this action. The
complainant may turn to ordinary courts to suspend this decision of the panel
of arbitrators. If the panel of arbitrators decides to reject the complainant's
petition, then, the UDRP process ends.
Arbitration process' fees at
the WIPO[1]
amount to 1,500 USD each domain name in question. A part of this tariff goes to
the WIPO and the other one, to the panel of arbitrators. One or three
arbitrators, as required by the complainant or the respondent, may compose the
panel. A detailed information on this procedure can be found at the address: http://www.icann.org/udrp.
The first dispute on domain
names was presented on December 1999 at the WIPO. The UDRP procedure was
designed as a mechanism to solve the problems created by a phenomena called as
“cybersquatting” or, in WIPO terms, “registration in bad faith”. The UDRP
procedure was not developed to solve other cases than disputes based on “better
rights”, which are inherently different than clear abuse of domain name
registration cases. Cybersquatting practices refer mainly to domain name registrations
made in bad faith.
The number of cases brought to an action at the WIPO amounts to 1841 in year 2000, involving about 3.200 domain names. This means an average of 6 cases a day on December 2000.
Summarily, the situation of cases brought to an action at the WIPO[2], since the UDRP procedure was established, is as follows:
|
Summary of all cases brought to an action: |
|
Summary of solved cases: |
||
|
Year |
Number of cases |
|
Transferred domains |
1284 |
|
1999 |
1 |
Cancelled domains |
10 |
|
|
2000 |
1841 |
Rejected complainant's petitions |
299 |
|
|
2001 |
617 |
Cases ended by an agreement between the parties or complaint retired |
416 |
|
|
Total: |
2459 |
Total: |
2009 |
|
According to the above table, it can be inferred that complaints were founded at a 64 % of cases as they ended with panel's decision of ordering the domain name’s transfer to the complainant. Another 15 % pertains to cases of wild complaints and, therefore, the petition to transfer the domain name was rejected. The remainder 20 % of cases pertains either to a wild complaint, a voluntary cession of the domain name during the administrative dispute process or an agreement between the parties.
Regarding statistics of these cases in Spain, it can be said that for some reason, Spain is being very active in this matter (a sad honor?), by the amount of claims brought to an action, as well as by the amount of Spanish companies/entities that have sued or have been sued.
Year 2000's statistics show
the following ranking of countries involved in domain names disputes:
|
Countries |
Domicile of Complainat |
Domicile of Respondent |
|
United States |
897 |
943 |
|
United Kingdom |
171 |
150 |
|
Spain |
90 |
101 |
|
France |
102 |
34 |
|
Germany |
66 |
14 |
|
Australia |
45 |
44 |
|
Canada |
28 |
77 |
|
China |
9 |
42 |
|
India |
45 |
26 |
|
Italy |
37 |
31 |
|
Japan |
43 |
19 |
|
Brazil |
33 |
22 |
The UDRP procedure have been
mainly thought to avoid difficulties arising from "cyber squatting"
practices, that is, to register and/or use certain domain name by a person or
legal entity, and such domain name is identical or confusingly similar to a
trademark which has been previously registered. The UDRP Policy clearly defines
the conditions to classify a case as a cybersquatting practice.
This practice was carried
out during the first months/years of the Internet start-up, as some people
thought they could register domain names identical to famous brands, with the
view to ask for an out of pocket compensation afterwards, as a
"ransom" in exchange for transferring the said domain name to the
appropriate owner. These practices have caused severe troubles to the Internet
development and were considered serious threats to carry out properly commerce
and business through the Internet.
It can be said today that
the UDRP policy has solved such a problem, as it is relatively easy, economical
and quick to restitute a domain name to a legitimate trademark's owner. For
example, some famous dispute cases involving Spanish companies and names are:
hipercor.com, campsa.com, bankinter.net, gomaespuma.com, vega-sicilia.com,
seur.com, telecinco.com, torraspapel.com, uralita.com, tres.com, libro.com,
cortefiel.com, pedrodelhierro.com, eresmas.com, metrobilbao.com, banesto.org,
raimat.com, realmadrid.org, cervezapolar.com, bodegasybebidas.com, pie.com,
infobolsa.com, rosamontero.com, joseluissampedro.com, famosa.com,
cafemarcilla.com, recoletos.com, bodegaslopez.com, barcelona.com, gente.com,
bancodevitoria.com, metrovacesa.com, bancoatlantico.net, onocableuropa.com,
tarjetanaranja.com, preysler.com, velazquez.com, cajadearquitectos.com,
ferrovial.net, ferrovialagroman.com, bolsadebilbao.com,
fundacionrafaeldelpino.com, vallehermoso.com, etc.
Some of the above cases
pertain to an obvious "cybersquattering" situation, which has been
the main reason why ICANN's uniform domain name dispute resolution Policy was
developed. It is worth to mention that, at a certain extent, cybersquattering
might have been promoted, maybe unconsciously, by the owners of famous
trademarks themselves, which have been "asleep" during several years,
thinking the Internet neither could affect them, nor has to do with them. It
has to be said that although the URDP procedure is valid and useful to solve
these cases, it is also convenient to wonder how long this UDRP procedure is
going to be in force.
In effect, whether
trademarks' owners were taken by surprise when the Internet arrived and when
they reacted, they realized their trademarks have been already registered as
domain names by other cleverer persons or companies, it can be understood that
this surprise could have been caused by the very fast implementation of a new
technology. As since mid 90’s we were at the Internet implementation and
development stage, so to make things function properly, it was convenient to
set a proper mechanism to re-establish business order: the URDP Policy and its
Rules. All this is a logical thinking, however, would anyone dare to restitute
a domain name such as, for instance[3],
Iberia.com in 2005 (or 2010), because formerly, another entity was the holder
of such domain name and the trademark's legal owner did not registered it
previously? It is obvious that if any Entity has not been interested in
carrying out any activity through the Internet during a long period of years,
it should not be able to impede another entity to use domain names identical or
confusingly similar to brand names. A term should be established for the URDP
to be in force. Once this term has elapsed, either the appropriate dispute
processes have already been carried out or any right of trademarks' owners
regarding the use of identical or confusingly similar domain names has
prescribed. New trademarks holders should bear in mind, at the time of applying
for registration of a trademark, that Internet exits and that the process to
register a domain name lasts 1 day and the process to register a trademark
lasts about 1 year.
The UDRP procedure has some obvious "holes" that should be repaired in order to avoid an abusive use. Some of them are listed below, which should be reviewed to find the best solution to solve them.
-
The UDRP procedure accepts to
review any type of complaint, however extravagant it is. This has an appeal
effect to open dispute processes, as a complainant without any apparent right
on certain domain name (even attractive domain name), may think it has nothing
to loose if it decides to start a dispute. It seems, from the complainant's
point of view, that it "must" start the dispute, as it risks nothing.
It only has to pay process' fees (about 1,500 USD) and to try its luck.
Considering that
the process of solving disputes on domain names is not an usual arbitration
procedure, that is, the owner of a registered domain name is constrained
to submit to arbitration procedures, as per contract provisions agreed with the
entity registering domain names, the domain name's owner should be ensured a
minimum reasonable legal support.
National
law includes a previous step to accept a claim: to accept it only for review
before bringing it to an action. If a Judge finds a claim extravagant and
poorly documented, he simply rejects it and the process is ended, which means a
guarantee for the respondent, as it is not submitted to an absurd process to
defend its interests, where it suffers economical and image damages and its
rights are questioned.
As
ICANN’s Policy did foresee that the UDRP would be aimed at clearing
cybersquatting cases, the Policy and Rules should ensure a mechanism to
distinguish between cybersquatting disputes and better rights disputes,
dismissing the latter prior to enter into any formal arbitration process.
The
fact that only a 65 % of cases has been resolved as a clear cybersquatting case
is, per se, a demonstration that the UDRP process is being used as a theatre to
dispute “better rights” cases. Under normal conditions and fair use of the UDRP
procedure, it could be thought that most of disputes are resolved in favor of
the complainant, provided this party brings to an action an UDRP dispute only
when a clear evidence of cybersquatting is present. The WIPO itself issued a
press release (http://arbiter.wipo.int/press/pr-207-es.html) proudly stating that the UDRP
process was a success, as the experience of the first cases brought to an
action, 89 in total, showed that all of them were resolved in favor of the
complainant. This original situation is progressively deteriorating and
nowadays it can not be said that the UDRP process is so efficient and following
its fidelity to the original target, as it is deviating from the original
reasons why it was established.
-
The UDRP process grants the
complainant the right to choose the arbitration service provider that will
review the dispute in question. The respondent has no choice to select the
service provider that will solve its dispute. For instance, national laws
usually constraint the Judge to belong to the respondent's jurisdiction, not to
that of the complainant, in order to be competent to examine a dispute. The UDRP
procedure stipulates just the opposite to the typical legal and social
guarantees under national laws. As arbitration service providers are under a
free concurrence system and they have different head offices and
"cultures", different tariffs, or different arbitrators, the
complainant has the unique choice to "condition" the play ground in
its favor or according to its thoughts.
-
The UDRP process does not
provide any compensation for the respondent in case the dispute is solved in
its favor. The respondent must pay for the process. This means a serious
threat for business on the Internet. Any entity may question any domain name's
owner, regardless of the relevance of the respondent's on-line business,
provided that the respondent suffers damages (sometimes, they are irreparable).
Usually, national laws provide a costs sentence against the complainant, when
applicable.
It is clear that
the complainant has a lot to gain at a UDRP dispute and a little to loose. If
it gains the case, it will be transferred, almost for free, the domain name: an
immediate prize to be executed within 10 days. If it looses, it only has to pay
for its claim preparation and a half of arbitration costs. It will not be
sentenced to compensate the respondent for caused damages. Moreover, if it
looses, it still has the second option of appealing to ordinary courts. This is
quite odd. When arbitration is set up, its findings should be accepted,
particularly by the complainant, the party wishing to undertake the arbitration
path.
Another problem is when a claim is launched in bad faith, pretending the transfer of a domain name that has been duly registered and used by its owner. The only consequence provided by ICANN's rules for these cases is to reject the claim and declare the harassment to a proper use of a domain name, also called Reverse Domain Name Hijacking. However, it is not provided any type of compensation for the respondent to offset defense expenses and damages and losses suffered as a consequence of the process
Therefore, some people having a sound financial status launch more frequently a wild claim against small businessmen or persons, who have gained a niche on the Internet thanks to its personal and professional efforts. In this way, the powerful complainant can get an attractive domain name, taking advantage of the lack of power and defense of "the small one".
Moreover, the UDRP process does not provide which set of circumstances has to be present to conclude on a Reverse Domain Name Hijacking case. This hole, wich adds much ambiguity to what a bad faith complaint means, is another example that shows why the UDRP is not currently suitable for anything else than clearing cybersquatting cases. It is recognized that UDRP Policy and Rules were developed at an stage to serious anxiety by the trademark owners and under a crisis scenario provoked by the cybersquatter practices. But understanding the need to solve this problem, one can not reasonably accepts that the rules developed to solve a given problem be a wonderful arena to facilitate other type of abuses against the legitimate domain name owners.
-
The UDRP procedure constrains
the respondent to pay for a half of arbitration costs when it requires the
panel to be composed by three members. It is obvious to think that whether
the respondent has a relevant on-line business and wants to defend it from a
complainant questioning the competence of a member of the panel to review the
claim (or just to ensure a resolution as objective as possible), it will ask
for the panel to be composed by three members (which is provided by the UDRP
procedure). Under these circumstances, the respondent looses the interest, as
it is required to pay for a half of arbitration costs, besides bearing the
costs related to the private defense.
-
The UDRP procedure provides that
arbitrators are appointed unilaterally by the arbitration service provider, selected
from their own arbitrators list. For an appointed arbitrator to be competent,
it only has to sign unilaterally a declaration of impartiality and
independence. It is not provided that the respondent can veto a certain
arbitrator. Under national commerce law, arbitration procedures are to be
accepted by the parties, not imposed to the parties. It may happen that an
arbitrator declares himself independent and impartial at a dispute, even in the
case that his professional office acts as usual advisor to one of the parties.
Obviously, this procedure does not provide minimum guarantees at all. Is it
fair a process where an arbitrator has declared himself independent and
impartial, and some time after the dispute has been solved, it becomes
collaborator-subcontractor-adviser of one of the parties that were in dispute?
Was such arbitrator really impartial? Or in the case when a fellow of the
arbitrator assists to one of the parties?.
For a small
entity that can not offer profitable contracts to advisers, this situation is a
permanent threat to rely on a fair arbitration procedure. It is fair to think
that an arbitrator (who is not a professional living on arbitration) will be
consciously or unconsciously tented to support the party that could be an
attractive customer later on.
-
When the panel is
composed by three members, the UDRP procedure proposes absurdly the parties to
suggest its preferred arbitrators. When one of the parties has suggested the
case to be examined by three arbitrators, the UDRP procedure provides that each
party suggests a list of three arbitrators to act as members of the panel. This
procedure is absurd, as each party can use it for a customized selection of
arbitrators. If it is intended that the three members of the panel are
independent (not only one of them), it is not clear why, when the panel is
made-up by three members, each party has the choice to suggest three
arbitrators names. Following the logic of the applicable procedure for
one-single arbitrator panels (where the arbitrator is appointed unilaterally by
the arbitration service provider and even the parties have no right to veto),
it is not clear why in a three members panel case, the service provider employs
a so complex method to appoint panel members. Parties may wrongly think they
has to choose an arbitrator related to their interests, culture or way of
thinking, therefore, panel's independence itself is being fiddled in advance.
This statement is supported by the increasing
situation where biased arbitrators, appointed as per a party’s suggestion, have
a psychological commandment to issue dissenting votes to the majority of the
panel.
-
The UDRP procedure does not
provide any mechanism to harmonize arbitrators' reasoning. Different
criteria have already aroused among arbitrators. Even, some of them boast of
reasoning peculiarly and not following precedent resolutions. This makes the
process to be considered as a lottery, as setting a preference on elements
exposed by the parties on a resolution will depend on a particular arbitrator's
criteria or a personal perception.
This seems quite
dangerous and obviously shows that the Policy and the Rules are extremely
ambiguous and lack of common criteria. It cannot be understood why similar,
almost identical, cases are resolved quite differently by various panels.
Arbitrators should ensure their qualifications and commitments to follow common
rules and common provisions to participate in a panel, not just their own
personal perceptions.
-
The UDRP process cannot avoid an
arbitrator participating as a judge and a party at dispute processes. It is
shocking that an arbitrator, who is advising an entity as a party in dispute
processes, becomes suddenly an impartial judge of another process trying to
show its renewed independent criteria. An arbitrator that voluntarily decides
to be an arbitrator and participates as such in domain name dispute processes,
should be prevented from participating as an active party in other disputes;
that is, either it decides to be a party's adviser or participates as an
arbitrator. An arbitrator should get on well with both parties alike, trying to
understand the issues of each one and not act as a referee at one match and as
a "center forward" at the next match. An arbitrator that acts as a
party in UDRP processes should be automatically removed by the service
provider, as it has a
"polluted" view of dispute processes.
-
The language of proceedings is
defined as the language used during
the domain name registering process. This
a real damage to Spanish companies that were constrained (or voluntarily
decided) to register their domain names through American companies and
consequently were constrained to use English as the contract language. English
was used when registration was carried out through a common method used some
years ago, which was based on a contract with Network Solutions, Inc., an
American company. Even when both parties are Spanish, if the complainant uses
Spanish language on the complaint, it takes the risk that the respondent does
not accept it, because the domain name was registered in English; and vice
versa, if the respondent replies in Spanish to a complaint launched in English,
it takes the risk of being considered in fault for not having used the pre-set
language. This language issue is one more reason in favor of powerful companies
and against the weak ones. A big powerful company can use Spanish or English
alike; however, for a small company or a person it is difficult to carry out a
process in a language different from its national language.
-
The UDRP process does not provide which measures to be adopted when any
party, either the complainant or the respondent, does not comply with the rules
or the supplemental rules. There are no provisions as to what would be the
reaction of the service provider or the panel if one party does not comply with
the rules or the supplemental rules. For instance, at “denuestratierra.com”[4]
case, the complainant was not submitting its communications to the respondent,
however the center and the panel considered this as innocent mistakes of the
complainant and the center simply forwarded complainant’s notices to the
respondent. The reaction with regard to these situations depends on the
subjective interpretation of the service provider or the panel.
-
The current UDRP process is certainly ambiguous about the way to
consider the interrelation with national court processes. In fact, it is
necessary to issue guidelines to rule arbitrators/service providers’s acts when
a national court holds a dispute process regarding a domain name. The UDRP
process should be immediately stopped immediately when a process at a national
court has been started by any party. Currently, there is no guidance about how
the panel should interpret a resolution issued by a national court; or
furthermore, if there is a national court resolution, what sense does a panel
resolution make?. For instance, at case D2000-1748, the complainant launched simultaneously
complaints in front of a Spanish court as well as in front of the WIPO. The
resolution from the national court came before, and it was notified to the
panel. In the light of this fact, the panel should have inhibited itself from
continuing the review of the case, however the Panel issued its own resolution.
Even more, one panelist issued its own dissenting vote in contradiction with
the national court resolution. It should be avoided members of the panel using
their power as panel’s members to criticize national court’s resolutions.
Considering the above
points, it can be reasonably thought
that the UDRP procedure is not equitable, fair or reasonable. At first, it was
created trying to solve the problem of "cybersquattering" under a
crisis scenario due to these practices, but it is generating other collateral
problems, and offers no minimum legal guarantees to parties in dispute.
Therefore, it should be reviewed in the light of the experience gained during
the almost three thousands cases that have been already reviewed.
To contribute to increase
the efficiency of and improve the uniform domain name dispute resolution
procedure, several suggestions, arising from the above comments and facts, as
well as from the experience gained during "denuestratierra.com"
domain name dispute process and other dispute cases examined previously, are
proposed below.
The aim of these suggestions
is to submit them to Institutions and persons involved in developing rules and
procedures for the Information Society: ICANN, WIPO, SETSI (State Department of
Telecommunications for the Information Society, a Spanish authority), ESNIC
(entity that registers domain names in Spain), the Spanish Senate, the
Parliament, Mass Medium, Lawyers offices, arbitrators, etc. These suggestions
will probably require a rules model, either for the present UDRP procedure or
for similar procedures at national level, as mechanisms to solve disputes on
domain names that have a national extension.
It is worth to say that the
current UDRP process has proved to be fully efficient to solve problems arising
from clear “cybersquatting” behaviors. The aim of the suggestions listed below
is to think about reviewing the UDRP process and, eventually, implementing some
provisions aimed at ensuring rights to both parties (the complainant and,
particularly, the respondent) and that the UDRP process is not used for
anything else than solving cybersquatting cases. Legitimate dispute cases,
based on a “better right” scenario, should be clearly distinguished from cases
subject to UDRP process.
The following improvements
are proposed:
a.- A deadline shall be set, until which the present uniform domain name dispute procedure, UDRP, will be in
force. Ended this period, either another rules adapted to a standard use of
the Internet are worked out (once the stage of introducing the Internet into
business has been left behind) or it is definitively removed and then this type
of disputes will be subject to ordinary laws.
b.- A dispute shall not be
launched without a previous formality:
the preliminary assessment by an arbitrator to decide whether it is accepted to
be reviewed or not. Only will the respondent be notified a complaint when it
has been properly made and there are a reasonable perception by an arbitrator
that the complaint meets a minimum of formality and a reasonable perception of
good right. For instance, and obviously, a complaint not including title
documents to support that the complainant has rights on trademarks should not
be accepted for review, avoiding unnecessary damages to the respondent.
c.- Once a complaint is
accepted for review, the respondent should
have the choice to select the arbitration service provider. It should not
be chosen unilaterally by the complainant. Therefore, whether a complainant has
to submit the complaint to a certain service provider, which will decide the
way to make the complaint proceed, after this point, the respondent should be
asked to confirm which service provider would solve the main case.
d.- The complaint entails some costs for the complainant, the arbitration process as well as for the respondent' defense. Therefore, the UDRP procedure should provide that the complainant should bear costs arising from launching a complaint that is later solved in favor of the respondent. An amount equivalent to these costs should be deposited by the complainant at the service provider until the dispute has been solved. Costs should cover the cost related to respondent's defense. Costs should cover a reasonable amount to be used by the respondent to defend properly its position. It should not cover additional costs (image, loss on profits, etc.), which would be subject to ordinary courts. This could be also solved directly by including a costs sentence while the panel solves the dispute.
e.- Arbitration process costs shall be charged to the complainant, in
case of a panel composed by one or three members. Arbitration process costs are
shared between the complainant and the respondent at present, in case the
latter requires a panel composed by three members instead of a panel composed
only by one arbitrator. This rule makes no sense, as the URDP process accepts
the disputes to be solved either by one or three members. The same scheme
should be applied to both cases. If choosing three members is quite reasonable
to get a greater confirmation of the resolution criteria, the cost of the
process should be also applied to three members panels and one-single member
panels alike. The process is started by a complainant, with good or poor
grounds. If it gains, it will get the transfer of its domain name, as a prize.
If it looses, it should not cause costs to a respondent involved at an unfair
or unreasonable process.
f.- The arbitrator that volunteers to be an arbitrator shall actually
be and perceived as neutral and impartial. It
should not participate as a party at a given process and as an arbitrator at
another process. Current practices admit multidiscipline arbitrators, which
is perceived as a source of arrangements and threats among the arbitrators that
have to act at a process. It should be avoided a smart Spanish proverb that
says “arrieros somos y ya nos
encontraremos” (literally: we are in the same business, so don’t dare to
damage my interests!). Therefore, the decision of acting as an arbitrator shall
entail the decision of avoiding its participation as a party at any dispute
process, even if it is a different case. It is to be stretched that a truly
neutral independent arbitrator does not “expose” any of its own interests,
however, the parties in dispute do have important interests subject to panel
decisions: public creditworthiness, investments, future, customers portfolio,
etc.
g.- The arbitrator shall also declare that although it is neutral and
independent so far, it also has the intention to be so in the future.
Acting as an arbitrator at a certain process involving two particular parties,
should prevent the arbitrator to be employed by any of these parties for life
(or at least up to a minimum period of about ten years). This should prevent an
arbitrator to "gain" a profitable legal assistance account after
having acted as a "supposed neutral arbitrator" in favor of the party
in question in the past. If an arbitrator acts at an arbitration process and
afterwards collaborates professionally with the parties in dispute during the
period of abstinence, it should be subject to an alleged criminal acting for
which it should be brought to court.
h.- Arbitrators, either for
one single member or three members panels, shall be chosen by the arbitration
service provider, granting afterwards the parties the right to veto such arbitrator. This should be a compulsory
condition to ensure precisely that arbitration is such: a voluntary, mutually
accepted process between the parties. The parties should not choose the
arbitrators, but they should have the choice to accept the proposed
arbitrators. Probably, this right was not originally provided to avoid actual
cybersquatters using it as another tool to defend their case, however, a
balanced UDRP process should provide mechanisms to guarantee that respondent’s
lack of defense in an UDRP process is not just used for a completely different
purpose: as an advantage for complainant that has an easier access to arbitrators.
i.- The arbitration service provider shall be involved in the disputes, not
only in administrative proceedings and formal notifications, but also to ensure
that arbitrators reasoning is coherent, regardless of specific personal
perceptions. A minimum of reference shall be followed by all panels, in this
way, the service provider should support technically the process and not only
supply administrative and logistic support as it does at present. It should be
avoided a panel's reasoning to be casuist, fanciful, not coherent with
precedent resolutions, etc.
j.- The language of proceedings should be either the respondent's language
or any other language agreed by the parties.
k.- A UDRP process should
be immediately finished when another dispute on the same domain name is raised
at any national court. Today, a complainant more often launches a battery
of complaints at several courts just to diminish the possibilities of
respondent’s defense, particularly when the respondent is a small company or
just a person. It should be particularly avoided a situation where arbitrators
use the UDRP process to criticize national court’s decisions or to voice their
particular views when opposed to a court’s resolution.
l.- UDRP service
providers should maintain public lists of arbitrators that have been subject to
the claims of any party or have been vetoed by any party. The UDRP process
should be as open and transparent as possible. It should be known the behavior
of arbitrators in previous cases, in order to avoid the participation of biased
arbitrators at domain name dispute processes. The service provider should
maintain an updated file for each arbitrator.
m.- The service provider
should publish its rules to select arbitrators. Currently, service
providers follow some rules, which are not publicly and openly known by the
parties, to select members of the panels; thus, the parties may think there is
some sort of corruption or, at least, that dispute’s outcome may be biased. The
process to appoint arbitrators and its related rules should be transparently
published by the service provider.
A complete file on this case can be inquired at the address: disputa@denuestratierra.com
However, the UDRP process
also is being used by parties for a purpose different from its original target,
so currently, an increasing number of disputes not following any cybersquatting
pattern is submitted to UDRP service providers. The UDRP process is not
suitable to solve these cases, as it has significant holes, which should be
reviewed.
Because the UDRP has already
been used in almost 3000 disputes, we think that it is time to review its
applicability for the future as well as to introduce measures to solve the
issues highlighted on this document.
This document has been
prepared by the Spanish company ROSE COMMUNICATIONS, S.L.[6],
which has been involved in a dispute case and, consequently, it is based on the
experience gained during such a process. Moreover, the ideas expressed on this
document reflect the points of view of this small company, which is engaged in
electronic commerce businesses in a rural agriculture environment.
[1] Tariffs vary a little among arbitration service providers.
[2] By the end of April 2001
[3] Iberia.com is cited as an example, as it is a famous brand, therefore it is easier to understand what is being stated on this document. However, Iberia.com is duly registered and used by its owner, Iberia company.
[4] Case WIPO D2000-1748
[5] Final report from WIPO with respect to Internet Domain Names, April 30, 1999 (http://www.wipo2.wipo.int)
[6] More information can be found at http://www.denuestratierra.com, and http://www.rose.es