Rules for Uniform Domain Name Dispute Resolution Policy: WIPO Suggestions

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ANNEX D

Rules for Uniform Domain Name Dispute Resolution Policy: WIPO Suggestions

In the twenty months since the Uniform Domain Name Dispute Resolution Policy (UDRP) has become effective, the WIPO Arbitration and Mediation Center has administered some 3,000 cases under the UDRP. This positive experience leads the Center to recommend a number of minor modifications to the Rules for Uniform Domain Name Dispute Resolution Policy. The purpose of these informal suggestions, which take account of the drafting history and fully preserve the intent of the UDRP, is to streamline the practical operation of this mechanism. Attached is a marked-up and a consolidated version of the Rules incorporating the changes recommended by the WIPO Center. The present note provides some background to the more significant of these.

Paragraphs

2.Communications

(a)

(i)The WIPO Center has received no indication that technical contacts are in a position to, or actually do, achieve notification of the Complaint to the Respondent. Those technical contacts that have at all reacted to the Center have confirmed their inability or unwillingness to fulfil this purpose. (This is different for administrative contacts, which more often correspond to or have a practical relationship with Respondent.) Where available, the billing contact has not provided an actual, different option for contact either.

(ii)Rarely, if ever, has an email notification to the postmaster address not been returned to the Center as undeliverable. This requirement has proven to be ineffective and, particularly in cases involving a multitude of domain names, inconvenient. The same applies to email addresses linked from the web page at issue. Those sites that were not under construction, on hold, or otherwise unavailable, usually have not yielded additional contact options that proved effective.

3.The Complaint

(a)The reference to initiation of a proceeding by the submission of a Complaint creates ambiguity when compared to Paragraph 4 (c), which provides that a proceeding commences after the Provider has completed its notification responsibilities.

(b) (xiii)Complainant's sending a copy of the Complaint to the Registrar provides the Registrar with early information about the dispute, enabling the Registrar to undertake any required or advisable action, especially with a view to preventing "cyberflight" - Respondent's switching of registrations after becoming aware of a dispute.

(With the same aim, Paragraph 8(a) of the Policy could be modified to provide that the transfer prohibition takes effect as of the registrant's first receipt of the Complaint from Complainant. As a matter of practice, Registrars should consider blocking transfer upon their first receipt of the Complaint, whether from Complainant or from a Provider. The Policy should make an express exception to the transfer prohibition for those transfers that are agreed between the parties to the proceeding, provided the Provider has notified the Registrar that it has granted a request by Complainant for a suspension (or termination) of the proceeding for this purpose (the Provider should also copy ICANN on any such notification of suspension or termination). Furthermore, the implementation of Paragraph 3(c) of the Policy concerning transfers ordered by Panel decision would benefit from clear Registrar guidance on the practical steps to be followed by prevailing Complainants.)

(xiii)Complainants have often interpreted the existing paragraph to state in the Complaint that they will require to jurisdiction "in at least one specified Mutual Jurisdiction," omitting to make the required express choice.

(xv)Requiring attachment of the Policy in the Complaint unnecessarily adds to the administrative burden of filing parties and Providers. The policy applicable to the dispute is the then current ICANN Policy. Respondents are made aware of the Policy through the terms and conditions of registration, the text of the Complaint, the Complaint transmittal coversheet, and the Center's notification document.

4.Notification of Complaint

(a)When they commence just before a weekend, the three calendar days cannot always be met. This is true especially when party submissions or payments arrive after hours from other time zones, or where, in light of the hour, it is no longer possible to procure courier services.

6.Appointment of the Panel and Timing of Decision

(b)Although the Center generally makes appointment within the required five calendar days, this timeframe sometimes proves to be unrealistic. Panelists can be difficult to contact, require time for conflict checks, and may actually have a conflict.

(e)If Complainant has opted for a three-member Panel but Respondent fails to file a Response, the initial preference for a three member Panel bears review. Respondent has not informed the Provider of its candidates for appointment, nor would Respondent be likely to comment on the Provider's list of candidate for presiding panelist.

(f)The reasoning concerning paragraph 6(b) above applies a fortiori to the appointment of two panelists.

(g)The Rules presently do not address the presidency of the Panel.

(h)Respondents must be aware of the consequences for Panel appointment of a failure to file a Response. In the interest of procedural efficiency, Providers should be able to proceed with appointment without reverting to a defaulting party.

11.Language of Proceedings

(a)Prior to the appointment of the Panel, it is only the Provider that can provide guidance on language issues. The Provider's instructions to the parties are subject to the Panel's further determination.

15.Panel Decisions

(b)Experience has taught that a three-member Panel, especially one whose members are located in different locations and time zones, requires additional time to deliberate.

17.Settlement or Other Grounds for Termination

(a)Most settlements occur prior to the appointment of a Panel.

19.Fees

(c)Failure to achieve payment within ten days has generally proven to be inadvertent or due to external circumstances, such as a party's location. Taking into account that such failure does not cause prejudice to respondent, Providers should be able to exercise discretion.

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