& the GII
This page looks at the Uniform Domain Name Dispute Resolution
an ICANN mechanism for addressing disputes about gTLD
It covers -
Domains & the DNS profile considers
domain name disputes as a phenomenon, along with the 1999
US Anticybersquatting Consumer Protection Act (ACPA).
The auDRP - based on the UDRP and covering disputes in the
dot-au ccTLD - is discussed
in the auDA profile elsewhere on this site.
the UDRP to handle disagreements about the allocation of
The UDRP involves arbitration and decision-making by a small
number of non-government arbitral bodies: alternate dispute
resolution (ADR) [aka alternative dispute resolution] services.
Decisions are made on a case by case basis, rather than
using detailed guidelines or an extensive body of precedent.
That has led to what some have criticised as bias or inconsistency.
Others have highlighted problems with lack of an appeal
body, one result being that some disputants have taken disagreements
to favourable fora such as courts in particular US states.
who is involved
Around 60% of the UDRP disputes have been heard by the World
Intellectual Property Organization's Domain Name Dispute
Resolution Service (DNDRS),
arguably because plaintiffs are comfortable with WIPO's
aesthetic of the 'sacredness' of intellectual property.
The others are the CPR Institute for Dispute Resolution
National Arbitration Forum (NAF)
and the Asian Domain Name Dispute Resolution Centre (ADNDRC). The
latter replaced Canada-based eResolution (eRes),
which withdrew in late 2001.
John Selby's 2004 paper
Competitive Provider Selection under the ICANN UDRP:
Are ICANN's goals being achieved? comments that
Provider's perceived reputation in the Complainant market
appears to impact significantly on its ability to compete.
Anecdotal evidence suggests that WIPO's strong international
reputation is one reason for its success. Criticisms of
the UDRP system by members of eResolution appear to have
contributed to the decline in its reputation amongst Complainants
and therefore to a decline in its market share. For the
purposes of Provider competition, the validity or inaccuracy
of such criticisms is unfortunately irrelevant. The way
in which Complainants react to such criticism is of paramount
the end of 2000 WIPO sought comments
on trademark and domain name issues in strengthening the
regime. It subsequently released draft
'Best Practice' guidelines to curb "abusive and bad
faith registrations of protected names, and to resolve related
disputes" regarding domain name disputes.
Those guidelines reflect calls from Australia and other
countries for a set of voluntary guidelines covering the
development of practices and policies. In April 2001 WIPO
issued a detailed interim report
on its current domain name dispute resolution process. The
report summarizes submissions on proposals to extend the
process to personal names, geographic locations and trade
The 'Process' aims at addressing disputes about domain names
- eg cybersquatting - in a way that's more speedy and economical
than recourse to international courts and that doesn't get
bogged down in disagreements between different national/regional
jurisdictions (eg French versus US courts).
A perspective on such arbitration is provided by Dealing
in Virtue: International Commercial Arbitration & the
Construction of a Transnational Legal Order (Chicago:
Uni of Chicago Press 1998) by Yves Dezalay &
Bryant Garth and in the much drier Law & Practice of
International Commercial Arbitration (London: Sweet
& Maxwell 1999) by Alan Redfern & Martin Hunter.
This site features a short profile
on ADR - including Australian and overseas legislation -
and particular projects concerned with B2B and B2C ADR.
Although ICANN has a quasi-governmental responsibility for
and administration of the net, the UDRP is enforced through
contract rather than regulation.
Domain name registrars accredited by ICANN incorporate the
UDRP into individual domain name registration agreements.
In effect, the UDRP binds registrants through their contracts
with registrars such as VeriSign/Network Solutions and MelbourneIT
"to submit" to "mandatory administrative proceedings" initiated
by third-party "complainants."
The scope of such UDRP proceedings is limited to claims
of "abusive" registrations of Internet domain names and
covers no other disputes.
Complainants in UDRP proceedings must prove that the disputed
"domain name is identical or confusingly similar to a trademark
or service mark in which the complainant has rights," that
the registrant has "no rights or legitimate interests in
respect of the domain name," and that the domain name "has
been registered and is being used in bad faith." The UDRP
identifies tests of "bad faith" and grounds for demonstrating
a registrant's "rights and legitimate interests" in a domain
Complainants initiate UDRP proceedings directly with one
of the dispute resolution service providers designated by
ICANN. The UDRP and the UDRP Rules prescribe detailed procedures
for appointing either a solo arbitrator or a three-member
panel to conduct the inquiry.
The UDRP is fashioned as an "online" procedure administered
via the net. Although a panel may opt in exceptional cases
to hold live or teleconference hearings, it is expected
to base its decision on "the statements and documents submitted"
in accordance with the UDRP, the UDRP Rules, and any "rules
and principles of law that it deems applicable."
In the absence of "exceptional circumstances," a panel is
expected to issue its decision within fourteen days of its
appointment. If the panel rules in the complainant's favor,
the only available remedy is for the registrar to cancel
the domain name registration or transfer it to the complainant.
A registrar may automatically implement a UDRP panel decision
after ten days unless the aggrieved registrant notifies
the registrar within this ten day period that it has "commenced
a lawsuit against the complainant in a jurisdiction to which
the complainant has submitted" as required by the UDRP Rules.
After notification, the registrar "will take no further
action" until it receives "satisfactory" evidence of the
resolution of the dispute, the dismissal or withdrawal of
the lawsuit, or a court order that the registrant does "not
have the right to continue using" the domain name.
criticisms and defenses
The UDRP has been strongly, although sometimes unfairly,
Two of the most influential studies have been the Rough
from Syracuse University's Convergence Center and Michael
Geist's valuable jurimetric study Fair.com? An Examination
of the Allegations of Systemic Unfairness in the UDRP
which examined 3,094 UDRP decisions.
The Syracuse report suggests that interpretation of the
UDRP by WIPO and forum-shopping by litigants have created
a system biased towards large trademark holders. Geist considers
patterns in decisionmaking by single and multiple person
panels. His analysis complements arguments in the Syracuse
report. His 2000 paper
on ICANN's Uniform Dispute Resolution Processes: Lessons
in ADR is also of value; Fair.com was updated
in early 2002.
Critics of the studies have responded that 'correlation
does not prove causation', arguing that they are methodologically
flawed - counting numbers but not identifying whether the
decisions by arbitrators were correct.
One UDRP supporter, for example, comments that most decisions
have been correct (with faulty judgements representing a
"tiny percentage of the total ... a smaller percentage
than happens in courts of law for most democracies"),
that many defendants do not contest the claim against them
and lose by default rather than bias, and that the UDRP
is exceptionally inexpensive relative to other legal mechanisms.
The 70 page 2002 study (PDF)
by the Max Planck Institute for Foreign & International
Patent, Copyright & Competition Law Intellectual Property
Institute concluded that the UDRP has been operating satisfactorily
although there is a need for fine-tuning regarding free
speech and rules concerning the burden of proof. There's
a more qualified endorsement in The ICANN Uniform Domain
Name Dispute Policy: The UDRP in Perspective After Nearly
Two Years (PDF)
by US practitioner G. Gervaise Davis III and in David Lindsay's
International Domain Name Law: ICANN and the UDRP
(Oxford: Hart 2007).
The UDRP by All Accounts Works Effectively (PDF)
and UDRP - A Success Story (PDF),
two 2002 documents from the International Trademark Association
(INTA), provide another response to the Geist and Syracuse
Ian Stewart's Federal Communications Law Journal
May 2001 article (PDF)
on The Best Laid Plans: How Unrestrained Arbitration
Decisions Have Corrupted the Uniform Domain Name Dispute
Resolution Policy argues that the UDRP as such is defensible
but has been distorted by the individual arbitrators.
It is a call for restraint, in line with Jonathan Weinberg's
more incisive article
on ICANN & the Problem of Legitimacy, Stacey
King's 2000 The 'Law That It Deems Applicable': ICANN,
Dispute Resolution & the Problem of Cybersquatting
and Joseph Liu's 1999 Legitimacy and Authority in Internet
Coordination: A Domain Name Case note.
Holger Hestermeyer's 2002 paper
The Invalidity of ICANNís UDRP Under National Law
suggests that problems might be addressed by enshrining
the UDRP in a global treaty. Kevin Heller's 2001 paper
The Young Cybersquatter's Handbook: A Comparative Analysis
of the ICANN Dispute and Zohar Efroni's 2005 The
Anticybersquatting Consumer Protection Act and the Uniform
Dispute Resolution Policy: New Opportunities for International
Forum Shopping? paper
consider the UDRP and ACPA. There is a broader review in
Adam Waxer's 1999 The Domain Name Fiasco: The Legal Battle
Between the Current Domain Registration System and Traditional
Trademark Law (PDF),
complemented by Igor Motsnyi's 2003 paper
Protection of Celebrities Names and Trade Marks under
the ICANN Uniform Domain Name Dispute Resolution Policy.
There is a more spirited defence in Doublas Hancock's 2001
An Assessment of ICANN's Mandatory Uniform Dispute Resolution
Policy in Resolving Disputes Over Domain Names and the
crisp 2002 paper
by Bradley Freedman & Robert Deane on The Uniform
Domain Name Dispute Resolution Policy: A Practical Guide.
As of October
2002 around 11,000 proceedings had been initiated under
By June 2007 the WIPO Arbitration service had heard some
11,051 disputes; the overall number of proceedings was over
2001 - 1,557
2002 - 1,207
2003 - 1,100
2004 - 1,176
2005 - 1,456
2006 - 1,824
2007 - 2,156
73% of the 2,156 complaints filed with WIPO under the UDRP
in 2007 were of disputed .com domains. The top five sectors
for complaints in that year were biotechnology and pharmaceuticals,
banking and finance, information technology, retail and
entertainment. Pharmaceutical manufacturers remained the
top complainants due to variations of protected names registered
for websites offering/ linked to online sale of medicines.
For a sense of how the UDRP is evolving we recommend Scott
Donahey's monthly digest
in association with the UDRP resources
at the Berkman Center for Internet & Society and the
Domain Name Law Reports (DNLR).
ICANN also offers a dispute search engine.