ICANN’s lead policymaking body has just initiated a UDRP reform process.
Meeting telephonically on February 3, 2011, the Generic Names Supporting Organization (GNSO) adopted a series of Resolutions in response to the Report of the Registration Abuse Policy Working Group (RAPWG). ICA actively participated in the RAPWG.
Resolution #2 is the one that kicks off the UDRP reform process. Its text reads —
RESOLVED #2, the GNSO Council requests an Issues Report on the current state of the UDRP. This effort should consider:
• How the UDRP has addressed the problem of cybersquatting to date, and any insufficiencies/inequalities associated with the process.
• Whether the definition of cybersquatting inherent within the existing UDRP language needs to be reviewed or updated.
The Issue Report should include suggestions for how a possible PDP on this issue might be managed.
Pursuant to this Resolution, ICANN staff will prepare a Report for GNSO review that addresses the effectiveness of the UDRP, its insufficiencies and inequalities, whether its definition of cybersquatting needs to be reviewed or changed, and how a formal Policy Development Process (PDP) might be managed for this complex and likely controversial subject. It is likely that a PDP will in fact be initiated once that report has been received and reviewed by the GNSO.
Needless to say, ICA will engage in a full dialogue with its members and the broader domainer and registrant communities to develop our own policy suggestions and priorities for UDRP reform. We will also keep close watch on the internal ICANN process and participate directly to the full extent possible. UDRP reform will likely be a multi-year endeavor which has very substantial positive potential for registrants dissatisfied with the current lack of predictability and consistency in UDRP decisions, as well as with certain complainant abuses including the lack of meaningful sanctions for attempted reverse domain name hijacking. But the reform process holds risks for registrants as well as trademark interests weight in with their expansive agenda, so ICA will be vigilant throughout.
ICA believes that the adoption of this Motion also bolsters our arguments against the proposed U.S. Government (USG) "Scorecard" for new gTLD trademark rules that has been proposed for Governmental Advisory Committee (GAC) adoption for its upcoming meetings with ICANN’s Board. The USG has proposed extreme changes that include provisions that were explicitly rejected by ICANN’s Implementation Recommendation Team (IRT) – allowing domain transfers through the Uniform Rapid Suspension (URS) process, thereby making URS the functional equivalent of the UDRP; as well as initiating a “loser pays” system that would likely benefit large and well funded corporations challenging domain registrants. The initiation of this UDRP reform process drives home the point that any rights protection measures that go beyond the existing, carefully crafted and fully considered compromise provisions embodied in the Proposed Final Applicant Guidebook should only be considered within the context of this new reform effort.
ICA will also to continue to press the argument that no new UDRP arbitration providers should be accredited by ICANN until it develops a standard contract with all UDRP providers. ICA believes that many professional domain registrant concerns regarding the operation of the UDRP –including forum shopping by complainants – could be addressed procedurally through such a standard agreement without any need for substantive changes in the UDRP standard.
For many years domain registrants have voiced their dissatisfaction with aspects of the UDRP and have urged remedial reform. ICANN has just given us the opportunity to address those problems. ICA intends to do everything possible to work cooperatively within a reform process that addresses the legitimate concerns of all parties, and that ultimately transforms the UDRP into a fairer and more predictable administrative procedure for resolving domain-related rights disputes.