What We Can Learn from URS Decisions (Hint: Not Much)

By Doug Isenberg
Doug Isenberg

In addition to being rarely invoked, the Uniform Rapid Suspension System (URS), when utilized, is providing trademark owners and domain name registrants with little guidance about this domain name dispute policy.

URS determinations typically offer no insight into the reasons behind an expert's decision, regardless of whether the determination was in favor of the trademark owner (to temporarily suspend the disputed domain name) or the domain name registrant (to allow the registrant to retain the domain name without interruption).

Although the URS rules require that a determination must "provide the reasons on which it is based," most determinations fail to offer much discussion. (The URS itself does not require an expert to explain a determination, stating only that "[i]f the Complainant satisfies the burden of proof, the Examiner will issue a Determination in favor of the Complainant" or "[i]f the Complainant does not satisfy the burden of proof, the URS proceeding is terminated and full control of the domain name registration shall be returned to the Registrant.")

As a result, URS determinations — unlike decisions under the Uniform Domain Name Dispute Resolution Policy (UDRP) — are typically very short and provide no analysis.

For example, in two recent decisions denying the complainant trademark owners' request to suspend disputed domain names, experts at the Forum simply concluded without any substantive discussion that "[t]he facts as asserted with respect to bad faith do not rise to the level of 'clear and convincing' under the URS procedure" (denial of suspension for <mil.haus>) and that "the facts presented with respect to bad faith do not rise to the level of 'clear and convincing' under the URS" (denial of suspension for <arcelormittal.lol>).

URS determinations in favor of trademark owners are also typically lacking in analysis.

As a URS expert myself, I tried to offer detailed explanations in some of the earliest determinations under this new domain name dispute policy. For example, in one of the first URS cases, I referred to "the early nature of these URS proceedings" and the need for discussion "above and beyond that which [I] would expect in such a decision," before offering a substantive explanation of how the URS applied to the facts of the case.

The more recent trend, in the relatively few URS determinations that are being published, is not to address substantive issues of law or fact in any detail. This is not surprising, given the following:

As a result, the lack of insight offered by most URS determinations offers parties no guidance about the newest domain name dispute policy and instills little confidence in the system, ensuring that the URS is unlikely to gain popularity and solidifying the UDRP as the domain name dispute policy of choice for most trademark owners.

By Doug Isenberg, Attorney & Founder of The GigaLaw Firm. Learn more by visiting The GigaLaw Firm website. Doug Isenberg also maintains a blog here.

Related topics: Domain Names, ICANN, Law, UDRP