UDRP on the table at Thursday’s board meeting.
ICANN has posted the agenda for its April 22 meeting, and item 10 reads:
UDRP Policy – relationships with service providers; changes in procedures
What exactly is this about? An ICANN spokesperson told me there’s no additional information available, and what the topic is about won’t be known until the minutes from the meeting are published.
But my guess is this has to do with two things that have created buzz in the community over the past couple months:
1. The fact that there’s no contract between ICANN and UDRP providers.
2. Certain UDRP providers have been playing around with their Supplemental Rules to try to change the overall UDRP process.
For example, Czech Arbitration Court has created a sort of UDRP-lite, where complainants can pay reduced fees for simple cases if the respondent doesn’t submit a reply in the case. Although there may be some merit to such an idea, the supplemental rules certainly weren’t mean for making such a change.
Internet Commerce Association sent a letter to ICANN about the Czech Arbitration Court change over a month ago, and ICANN hasn’t responded.
Tim says
Watch ICANN give blessing to what the NAF, WIPO, and the Czech Arbitration Court do.
I would not be surprised if they handed out trophies to the three of them with a pat on the back and a “Way to go!”
After all, ICANN is full of the same like-minded type of folks….. crooks, “Internet purists”, and bad intentioned slime balls.
I hate to say it but it is the truth.
John Berryhill says
“Watch ICANN give blessing to what the NAF, WIPO, and the Czech Arbitration Court do.”
That is historically untrue. A few years after the UDRP, WIPO came up with a second set of recommended rules for geographic terms, international non-proprietary names of pharmaceutical compounds, trade names, appellations of origin (champagne, parma, burgundy, etc.), and a few other things, to expand beyond “trade or service marks”. ICANN turned this down.
The perspective at WIPO is tinged with a sense that ICANN is sufficiently pliant, and the perspective at ICANN is that WIPO tends to communicate in ultimata. To the extent that domain registrants believe ICANN and WIPO are “in bed together”, that may be true, but it is more like a suspicious and resentful couple married a long time than it is like newlyweds.
John Berryhill says
Typo, should read – “ICANN is NOT sufficiently pliant”
Philip Corwin says
We can only hope that ICANN’s Board will do the right thing and begin consideration of developing a standard contract to be entered into with all accredited UDRP providers, and will also call CAC out on its abuse of Supplemental Rules to effect significant policy changes in the UDRP.
However, one partial misstatement is that ICANN hasn’t responded to ICA’s letter asking it to clamp down on CAC. While there was no formal response to the letter, I did raise a question (by remote participation) during the Board’s Public Forum in Nairobi, and staff repeated the CAC fiction that it had withdrawn its fast track UDRP proposal when in fact even CAC has stated that their revised version, now in effect, preserve “the core” of the original proposal. Perhaps some Board members found that response as unconvincing as we did.
Kristina Rosette says
FWIW, I’ve heard that ICANN is considering requiring UDRP Providers to obtain ICANN approval for changes to their Supplemental Rules.
Dave Zan says
And an actual contract? 😀
John Berryhill says
“And an actual contract?”
That raises a very sticky problem with WIPO.
WIPO is a treaty organization which is ordinarily immune from most legal actions. Signing a contract would necessarily expose them to suit under that contract, and that is not going to happen. Of course there is no ICANN requirement that WIPO be a UDRP provider either. Under ordinary principles of governance, we do not usually vest the policy making and adjudication functions in the same body (and certainly not where the adjudicators and policy makers also work as advocates for parties to those adjudications).
Being contractually obligated to follow the UDRP would be a disaster for WIPO. Take as one example, the rule:
“n the absence of exceptional circumstances, the Panel shall forward its decision on the complaint to the Provider within fourteen (14) days of its appointment”
Those things do not happen often, or else there are a lot of “exceptional” cases. Taking a mundane case from today’s WIPO mailbag:
http://www.wipo.int/amc/en/domains/decisions/html/2010/d2010-0271.html
“The Center appointed M. Scott Donahey as the sole panelist in this matter on March 26, 2010.”
..and the date of the decision:
“Dated: April 20, 2010”
That’s 26 days – nearly double the time period provided in the actual rules.
Now, there was a response in that case, which may be “exceptional” but, again, from today’s list of decisions:
http://www.wipo.int/amc/en/domains/decisions/html/2010/d2010-0198.html
“The Center appointed Charné Le Roux as the sole panelist in this matter on March 19, 2010.”
Decision date: “April 9, 2010”
21 days – in a default case, btw, and no indication of “exceptional circumstances”.
That’s by no means a comprehensive study, but a look through the cases noticed in the WIPO email announcements today. One third of the cases noticed today were at least facially non-compliant with the UDRP Rules. It is rare that a contested three-member panel case complies with the UDRP Rules, which should make one think that if a panel is grappling with a complicated question, then it might not be a “clear cut” case of the type the UDRP anticipated.
Do I want UDRP panelists rushing through these things? No. But that is not the point. Is this a UDRP “rule” or not? Requiring contractual compliance with it would be a disaster. Either that, or panelists will have to re-calibrate their sense of what is a clear cut case, and what is a case requiring complex thought (which used to be thought to take the case out of the ambit of the UDRP).
It is not the only rule which is routinely ignored, but is a handy example evident from data in the cases themselves.
I’m not meaning to pick on WIPO here. On balance WIPO does a good job with what can be a difficult procedure, and is bound by practically unchangeable rules which experience has shown could use procedural improvement. However, none of the UDRP providers should be the arbiter of their own performance in back-patting press releases, and WIPO is quite vocal about non-compliance of others in the process.