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The Future of Domain Name Dispute Policies: The Journey Begins

A just-launched ICANN “working group” (of which I am a member) will—eventually—help to determine the future of the Uniform Domain Name Dispute Resolution Policy (UDRP), the 17-year-old domain name arbitration system that has been embraced by trademark owners and criticized by some domainers; as well as the Uniform Rapid Suspension System (URS), the new (and limited) arbitration process that applies to the new gTLDs.

The Policy Development Process Working Group has been chartered by ICANN’s Generic Names Supporting Organization (GNSO) Council to review the rights-protection mechanisms (RPMs) that have been developed for all generic top-level domain names (gTLDs). Despite the numerous acronyms necessary to describe the group, the charter is relatively straightforward and includes two phases:

  • Phase One will focus on “a review of all the RPMs that were developed for the New gTLD Program”—including “the Uniform Rapid Suspension System (URS); the Trademark Clearinghouse (TMCH) and the associated availability through the TMCH of Sunrise periods and the Trademark Claims notification service; and the Post-Delegation Dispute Resolution Procedures (PDDRPs).”
  • Phase Two will focus on “a review of the UDRP”—which the charter notes “has not been subject to comprehensive review.”

The list of potential questions the group will address include important issues, such as:

  • Should UDRP complaints be subject to a statute of limitations?
  • Are domain name registrants’ free speech rights adequately protected under the UDRP?
  • Should the UDRP’s requirement that a domain name be “registered and is being used in bad faith” be changed to registration or use in bad faith, as under some other domain name dispute policies?
  • Should UDRP panels be able to award monetary damages?
  • Should default judgments be available if a domain name registrant fails to file a response?
  • Should complainants face penalties for “reverse domain name hijacking”—that is, when the UDRP has been used in bad faith?
  • Should the URS allow for a “perpetual block” of a domain name, not just a temporary suspension?

And these are just a few of the nearly 100 “potential issues for consideration” listed in the group’s charter.

Given its large (and, in many cases, surely controversial) agenda—and, in any event, like all ICANN activities—this RPM working group likely will take a long time before issuing its reports; one of the group’s anticipated three co-chairs suggested during the first phone call that it would probably be “late 2017” before Phase One is complete—and even that timing could be optimistic. Plus, any resulting recommendations ultimately must be approved by the ICANN board, as set forth in the GNSO Policy Development Process (PDP) .

As a result, although it’s impossible to know what the RPM working group will decide on any of the topics on its plate, it’s safe to say that no changes to the UDRP or the URS are imminent.

By Doug Isenberg, Attorney & Founder of The GigaLaw Firm

Learn more by visiting The GigaLaw Firm website. Doug Isenberg also maintains a blog here.

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