UDRP Systematic Bias as Panelists Mindlessly Copy and Paste Text

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.

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ICANN Public Comment Periods are a Sham. All Public Comment Periods Should be Suspended Until a Full Investigation Has Occurred

Today was the last day to submit comments to ICANN on the GNSO Policy Development Process on IGO-INGO Access to Curative Rights Protection Mechanisms Policy Recommendations for ICANN Board Consideration.  I submitted a comment a few minutes ago, which can be read in its entirety here [PDF]. Comments by others can be viewed in the public comments archive.

As a preliminary matter, I called out ICANN for pretending that the comment periods are legitimate. Below is the first section of my 32 page submission (with formatting slightly edited for clarity on this blog):

As a preliminary matter, I note with approval and fully support the recent Reconsideration Request 19-2 filed by Namecheap, Inc. regarding the .org contract renewal, where Namecheap wrote:

The ICANN org will decide whether to accept or reject public comment, and will unliterally (sic) make its own decisions- even if that ignores the public benefit or almost unanimous feedback to the contrary, and is based upon conclusory statements not supported by evidence. This shows that the public comment process is basically a sham, and that ICANN org will do as it pleases in this and other matters. It is a concern not only for the renewal of the .org and other legacy TLD registry agreements being renewed in 2019, but an even greater concern for the upcoming renewal of the .com registry agreement- as well as other vital policy issues under consideration by ICANN now and in the future. [p. 12, emphasis added]

These are strong but thoughtful words from a highly respected company in the domain industry, whose views are shared by many. One of the synonyms for the word sham is fraud, and it’s apparent now that a fraud has been perpetrated on the public, namely ICANN deceiving the public into believing that these comment periods were legitimate opportunities for meaningful input. The reconsideration request isn’t strictly limited to the .org renewal, but directly calls into question the legitimacy of all of ICANN’s public comment periods for all of the policy issues now and in the future. ICANN should not take their reconsideration request lightly, but should instead call for a full public investigation with full opportunity for the ICANN community to weigh in on this procedural matter which is at the core of ICANN itself. Until such an investigation has concluded, I call on ICANN to suspend all public comments periods, in order to ensure the process integrity of all policymaking.

Of course, given ICANN’s comment process is a sham, this comment itself will likely be ignored, but I place it on the public record for posterity so that a higher authority will eventually hold ICANN accountable. My remaining comments are thus made “in protest” given that the process itself is currently a sham, but I place them again on the record so that fair-minded members of the public can later scrutinize ICANN’s processes, and hold them accountable.