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Why WIPO’s Proposed Fast-Track UDRP Process is Flawed

In the midst of ICANN’s decision to ask the Generic Names Supporting Organization (GNSO) to create proposals on trademark protection mechanisms, the World Intellectual Property Organization (WIPO) announced that it will launch a fast-track UDRP process (related report).

At the Seoul meeting last week, the GNSO authorized the creation of a Special Trademark Interest (STI) team to come up with answers on the ICANN’s staff recommendations on the Trademark Clearinghouse and the Uniform Rapid Suspension System (URS).

Today WIPO announced its intention to create a fast-track system, similar to the one the STI is working for the URS. “We are not proposing to change the UDRP policy or rules at all. Instead, using the existing framework, WIPO expects to offer a new and more efficient fast-track option based on adjustment to WIPO case practice under the UDRP”, Erik Wilbers stated.

The WIPO move is flawed and creates various problems. Here is an account:

1. It is illegitimate: WIPO is acting on its own. It is not acting in its capacity as an inter-governmental organization nor as an ICANN-accredited center. It creates and suggests policy contrary to its role as a service provider. (Would we accept the same by the other ICANN-accredited centers?)

2. Non-transparent: What is the process WIPO followed to create this fast-track system? Which cases will the system cover? What are the parameters of the new system and how will it fit within the UDRP? These are legitimate questions that WIPO has not disclosed.

3. WIPO is justifying the system on loose and arbitrary conclusions: WIPO’s process and the conclusions and justifications that lead the organization to create this policy are not evident. Center Director, Erik Wilbers stated: “The domain name system has evolved. We have seen automated registrations, parking and pay-per-click and privacy issues. In addition, we have seen vast increases in domain name registrations. The language rules have also been abused in some cases.”

4. It is non-accountable: WIPO has not consulted all the interested parties. While ICANN should be applauded for following its buttom-up process by creating the STI, WIPO is not seeking the views of the Internet and trademark community.

5. It sets a dangerous precedent: WIPO wants through this fast-track process to deal with the 75% of cases that are not defended. This creates a dangerous precedent and considers all defaults bad faith, continuing the dialectic of the UDRP.

6. It will have a negative impact on registrants: Despite what WIPO states, the new process will negatively impact the already fragile rights of respondents. What about ‘trademark lawyer abuse’ issues and due process?

7. It will encourage bias: WIPO is known for its bias and the wide discretion of its panels. This process will magnify these problems as trademark owners will use and abuse the system to their advantage.

8. It will suppress free speech: The new process will encourage the creation of a solely commercial DNS. Free speech will be in danger.

9. The system will be gamed: Trademark owners will use the fast-track process and if they lose they will proceed to the standard UDRP.

10. It is anti-competitive: The WIPO process will place the other centers out of the competition. Trademark owners will prefer the new, fast WIPO process - we should anticipate a significant decline in their case law.

ICANN should send an immediate, urgent cease and desist letter to WIPO to withdraw from this process, and wait for the GNSO to submit its recommendations to the ICANN board. If WIPO does not comply, ICANN should proceed to revoke WIPO’s UDRP accreditation.

By Konstantinos Komaitis, Senior Director, Policy Development and Implementation, Internet Society

The views and opinions expressed here are those of the authors and do not necessarily reflect those of ISOC or its position.

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