Published July 25, 2011
The Uniform Domain-Name Dispute-Resolution Policy (UDRP) has been utilised nearly 20,000 domain-name disputes brought before the World Intellectual Property Organization (WIPO) over the last ten years; but a recent study has found how those cases turn out can at times depend on the nationality of the parties and arbitrators.
The UDRP was originally initiated by the Internet Corporation for Assigned Names and Numbers (ICANN) to handle disputes relating to all .biz, .com, .info, .name, .net, and .org domain names - and also covers some some country code top-level domains*. WIPO is an agency of the United Nations dedicated to "developing a balanced and accessible international intellectual property (IP) system".
The 48 page report by Professor David A. Simon from Harvard Law School says based on his research of WIPO's online decision database, he found arbitrator and respondent nationality had a "statistically significant" influence on the success of a respondent's fair use claim.
Professor Simon singled out the United States; stating that USA residents are more likely than those from other countries to succeed on a fair use defense and arbitrators from the United States are more likely to find that a respondent's use of a domain name was fair than where arbitrators are from other nations.
Given the bias, Professor Simon has proposed two revisions to improve the UDRP:
a) ICANN adopt a "choice of law provision" stating that the law of the respondent's country governs fair use disputes.
B) ICANN should implement a panel assignment provision in fair use cases that requires arbitrators to share the nationalities of the litigants.
"An Empirical Analysis of Fair Use Decisions under the Uniform Domain-Name Dispute-Resolution Policy" (published July 17, 2011) is available for download in full here (PDF).
*The .au space, including .com.au domain names is covered by a different process, the auDRP. The auDRP commenced on 1 August 2002 and was drafted by auDA's Dispute Resolution Working Group; based on the UDRP.
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