Legal Experts Weigh In on Domain Arbitration

It has kept domain disputes involving huge companies and small profiteers known as “cybersquatters,” as well as other Internet address disputes, out of court, but is the domain arbitration that is mandatory for Internet Corporation for Assigned Names and Numbers (ICANN) domain registrants fair?

Legal observers indicated the simple process, whereby domain registrants file demands with a chance for opposing parties to respond, helps head off full-blown litigation. While somewhat in need of improved consistency, it allows faster and less expensive domain-name dispute resolution.

Known as the ICANN Uniform Domain Name Dispute Resolution Process (UDRP), the arbitration has also won the approval of industry, according to Peter Vogel, Southern Methodist University Law School professor and chair of the Texas Supreme Court Judicial Committee on Information Technology.

“My experience has been that everyone prefers this to expensive litigation, and I cannot think of anyone who does not prefer this approach,” Vogel told TechNewsWorld.

Disputes for Less

Another technology legal expert, Kevin Gray of the firm Fish & Richardson in Dallas, told TechNewsWorld the UDRP is very helpful, allowing those who are claiming a right to a domain name through trademark rights to challenge the registration of the name by a third party without involving the expense, time and trouble of the legal system.

“The UDRP, when compared to traditional litigation, is relatively inexpensive,” Gray said in an e-mail. “An entire typical UDRP case can cost less than just the discovery phase of a traditional litigation case. And it is much quicker. UDRP decisions are typically handed down in 60 days, not after many months or years.”

Gray added that the panelists deciding these cases have experience in trademark rights, domain names, electronic commerce and related areas, giving them a better foundation for deciding the disputes.

The attorney also said most businesses like the process, which entails a petition that is filed for a fee, time for the current registrant to respond or challenge, and review by panelists. Companies do not want to pay exorbitant prices to third parties, such as cybersquatters, but they also do not want to pay the legal costs associated with such a dispute, Gray said.

“The length of time and expense of traditional litigation makes it particularly impractical when it comes to deciding most domain name disputes,” he said.

Dot-Squabbles Down

Vogel, who works as co-chair for the Internet and Computer Technology practice group for law firm Gardere Wynne Sewell, said some parties prefer traditional trademark infringement litigation when dealing with domain names, but he indicated there are dramatically fewer disputes today than in 1999, largely thanks to arbitration.

“Adding to that, anti-cybersquatting laws have also reduced the volume of illicit domain users, and therefore disputes,” Vogel said.

While the arbitration process and legislation have been introduced to combat cybersquatting, other issues, such as “typosquatting” — using slightly mispelled domain names to catch traffic intended for known brands, have also been highlighted in UDRP arbitration. A recent case involved an arbitrator award of rights to misspelled domains to Google following the company’s complaints against typosquatters.

Room for Improvement

Although he referred to general industry acceptance and satisfaction with ICANN’s UDRP, Gray said the arbitration process, like almost any process, could be improved.

“Many would say that there should be more consistency in the decisions handed down by the numerous panelists,” Gray said. “Such consistency would allow folks to better predict the outcomes of UDRP and would also allow folks interested in speculatively registering domain names to govern their behavior to avoid losing UDRP cases,” he said.

Nevertheless, Gray added the domain disputes can be quite fact-intensive, and it may be unfair to expect a high degree of consistency.

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