Question: Should the UDRP provide for a procedure that domain name holders could initiate against trademark owners attempting a reverse domain name hijack which would prohibit the transfer of the domain name to the trademark owner, if the domain name holder is successful in arbitration?

Nominee Replies

Harris Miller - posted on 2000-09-23 19:09:03 I support the UDRP concept in general. It is essential that some means of expedited dispute resolution be available for the limited set of circumstances for the UDRP. I would support an analysis of ICANN's experience to date with the UDRP. Improvement is always possible. Barbara Simons - posted on 2000-09-23 18:59:16 ICANN should not be responsible for enforcing trademark laws. I am very concerned about a number of bad UDRP decisions that appear to expand the rights of trademark holders on the Internet far beyond the rights that they have off the Internet. Therefore, I would support the creation of a procedure as described in the question both to protect domain name holders and to prevent the stifling of speech through the abuse of trademark laws. Lawrence Lessig - posted on 2000-09-22 16:50:07 I do not support the UDRP. I would support a policy that allowed gTLDs to experiment with different enforcement mechanisms, and this innovation would be a good one. But I don't support a single policy imposed on all gTLDs. Emerson Tiller, J.D., Ph.D. - posted on 2000-09-22 15:41:55 Good question. I have proposed an appeal system that would essentially do what you suggest here (see http://64.82.55.205/tiller.html). In the system I propose, if a domain name holder loses in a dispute resolution proceeding, he/she can appeal to an ICANN appeals board (which would be made up of arbitrators coming from all the dispute resolution providers -- of which there is currently 4). The appeal would be cheap and fast. The ICANN appeals board would bring much needed consistency in the application of the Uniform Domain Name Dispute Resolution Policy (UDRP). Currently the decision logic varies from arbitrator to arbitrator and from dispute resolution provider to dispute resolution provider. An ICANN appeals board that brings consistent application of the UDRP would (1) give domain name and trademark holders a fair opportunity to correct erroneous arbitrator decisions, (2) reduce the value of current forum shopping going on by large businesses, (3) provide some precedent so that arbitrators would know how to apply the UDRP in a more consistent manner, and (4) increase legitimacy of the UDRP, and the decisions under it, in the eyes of courts who will increasingly be called upon to review ICANN domain name decisions. The last point will ultimately be important to both domain name holders and trademark holders a like. If courts do not view the ICANN domain dispute decisions as legitimate, then trademark owners will gain little in having the ICANN UDRP over the long run. An ICANN appeal board would be good for everyone.