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A QUICK FIX FOR VICTIMS OF CYBERSQUATTERSBy In response to the calls for effective mechanisms to resolve domain name disputes, the Internet Corporation for Assigned Names and Numbers (ICANN) approved the Uniform Dispute Resolution Policy (UDRP) and an accompanying rules of procedure (Rules) on October 24, 1999. ICANN is a non-profit corporation which was formed to assume responsibility for the domain name management system currently performed by the U.S. government under contract to various parties. The UDRP was adopted for registrars in the .com, .net, and .org generic top level domains (gTLDs). On the other hand, domain name disputes in the country code top level domains (ccTLDs) such as the PH domain in the Philippines, are not subject to the UDRP, although they are encouraged to adopt the policy in full. Therefore, disputes over "name.com" falls within the UDRP while those over "name.com.ph" do not. To date, over 600 domain name disputes have been filed pursuant to the UDRP many of which have already been decided. Under the policy, certain types of domain name disputes are submitted to a mandatory administrative proceeding conducted before an ICANN-accredited dispute resolution provider. The first entity accredited was the World Intellectual Property Organization (WIPO) which also played a key role in the formulation of the UDRP. The principal advantage of the UDRP is the speed by which the cases are resolved - typically 30 to 45 days from the filing of the complaint. Not all domain name disputes fall within UDRP although it certainly includes egregious cases of cybersquatting. Under the UDRP, the following elements must be present in order to qualify for the mandatory administrative proceeding:
The critical element, of course, is bad faith -- instances of which are enumerated in the UDRP itself. These include situations where the respondent registered the domain name primarily for the purpose of selling the same to the owner of the mark for valuable consideration (a classic modus operandi of a cybersquatter). Other cases of bad faith involve disrupting the business of a competitor or attracting Internet users to the respondent's website by creating a confusion arising from the use of the complainant's mark as the domain name. For instance, the owners of a night club called Webster Hall discovered that their competitor, a club called The Vault, had registered the domain name websterhall.com. The Vault had no rights to or interest in the name Webster Hall. Obviously, the Vault intended to disrupt the business of its competitor by depriving it of the use of its domain name. A decision was rendered ordering the cancellation of the domain name registration. For their part, respondents can defend themselves by proving their rights or legitimate interests in the domain name. For example, in a recently decided case, the registrant of westernhay.com was unaware that a corporation named Western Hay Company existed. The registrant used the domain name for a site on horse nutrition with a focus on the merits of hay grown in the Western U.S. (hence, westernhay.com). Needless to say, given the good faith use by the respondent of the domain name, the arbitration panel ruled in his favor. In UDRP cases which are decided against the respondent and call for the transfer or cancellation of the domain name registration, the respondent has 10 business days to file an action in a regular court to suspend the implementation of the adverse order. The domain name registrar must then wait for a final resolution of the court case, the submission of an amicable settlement, or otherwise, a court order, before taking any action against a domain name registration. Court cases may be filed even during the mandatory administrative proceeding but the decision to suspend or terminate the same is left to the discretion of the arbitration panel. The first decision rendered under the UDRP involved the domain name www.worldwrestlingfederation.com which was registered by a cybersquatter who offered to sell the name to the WWF for US$1000 despite incurring registration costs of only US$100. The WIPO arbirtration panel ruled in favor of the WWF within 45 days from the filing of the complaint on December 2, 1999. While the UDRP is not an end-all be-all solution for all domain name disputes, it does provide a venue for the swift and inexpensive resolution of cybersquatting cases. For more information on the UDRP, visit www.icann.org/udrp/udrp.htm. |
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