CircleID

The World Intellectual Property Organization (WIPO) has sent to ICANN a letter proposing Paperless Uniform Domain Name Dispute Resolution Policy (UDRP).

Basically, the proposal involves submissions being made in electronic form, and that instead of delivery of the actual complaint, that notice of the complaint be delivered instead. This would save considerable amounts of paper, reduce courier charges (as the notice weighs far less than the full complaint), and thus would be good for the environment.

Generally, I'm in favour of the motivation behind the proposal, as it would reduce a great amount of waste, and increase efficiency. It might need to be tweaked a little, though, in order to improve safeguards for registrants.

My concern is that whatever form of notice takes place, the goal should be that registrants have actual notice of the complaint, and sufficient time to prepare a defence. It's very easy to miss an email, given 90%+ of all emails are spam. There are already international treaties like the Hague Service Convention on this topic, so one need not reinvent the wheel completely. One possible way to assist in ensuring actual notice is to optionally permit registrants to store at their registrar (and optionally display in WHOIS) the name and contact information of their legal counsel, who would then also receive copies of the UDRP notice. The more people "in the loop" so to speak, the greater the odds of actual notice. This is also a way for legitimate and responsible organizations owning domain names to signal and whitelist themselves, separating themselves from fly-by-night operations who would never list a legal counsel and who would typically never respond to a UDRP.

In Ontario, Canada, the Rules of Civil Procedure (Rule 18.01) give a defendant up to 60 days to respond to a complaint, compared with the 20 days in UDRP. I believe this to be typical. If the UDRP allowed the time to reply to vary depending on the age of the domain name (i.e. difference between the current date and the creation date), that might be a suitable compromise. A registrant of a domain that is 10 years old would be able to take a 3 week vacation without worrying that someone might have filed a UDRP during that time. Whereas a freshly cybersquatted domain name that is less than 1 year old would be subject to a shorter time to respond. This also provides incentive for complainants to file UDRPs in a timely manner, rather than waiting years to do so. If a domain name is 5 or 10 years old, there is not the same sense of urgency as a freshly registered domain name.

As we move towards an electronic system, thought should also be given to ensuring that submissions are in easy-to-use formats, e.g. PDF (not MS Word). Even better would be to have a markup-language like XML (perhaps call it UDRPML?) similar to the electronic submissions in the EDGAR system where documents are filed in XBRL, FPML for derivatives transactions and so on. If UDRP decisions were similarly available in UDRPML, this would permit academics to perform studies like those of Professor Geist more easily and at lower cost. Other legal scholars and service providers would also appreciate a standardized format to simplify analysis, redistribution and reformatting.

By George Kirikos, President, Leap of Faith Financial Services Inc.

Related topics: Cybersquatting, Domain Names, ICANN, Law, Policy & Regulation