The Uniform Domain-Name Dispute-Resolution Policy (UDRP) permits trademark owners to bring domain name registrants before a panel to adjudicate allegations of cybersquatting. These panels have the ability to order that a domain name be transferred to the complainant if the cybersquatting claim is proven. Given this tremendous power to transfer valuable property, there is an inherent expectation that the panels will be neutral, unbiased, and will formulate their decisions with utmost care.
However, a recent UDRP decision involving a dispute over the ymobile.com domain name demonstrates that panelists are not starting from a clean slate when adjudicating cases, as one would expect from a neutral and unbiased panel. Instead, panels are using a starting point that the complainant will be the winner, demonstrating systematic bias against domain name registrants.
The decision in the case is archived here, lest the original decision be quietly changed (as has been done in the past). While the respondent was victorious in this case, with the complainant only proving 1 out of the required 3 elements, the final words in the decision reveal the bias:
Rather than accurately stating that only 1 out of the 3 required elements was established, the panelists (Karl V. Fink, Steven M. Levy and Neil Anthony Brown) instead wrote that the complainant had “established all three elements.” Clearly, the panelists mindlessly and mistakenly copied and pasted the default pre-written text, demonstrating a predetermined biased outcome in favour of complainants in general, and against respondents. Rather than starting from a clean slate, the decision was going to be in favour of the complainant by default, before the panelists saw or considered any of the evidence. This is unacceptable.
What’s worse is that this has been going on for a long time, as I wrote about a similar “copying and pasting” debacle in 2010. This was a 3-person panel, where one would expect higher quality control compared with a 1-person panel. Instead of preparing the decision with utmost care, it appears this panel just mindlessly copied and pasted the biased boilerplate text.
There is an ICANN working group that is tasked with reviewing the UDRP and the related URS policies, but I am unjustly banned from participating in it. I encourage those who care about due process to get involved and speak out to ensure that these longstanding issues are finally addressed.