Subject Public Comments on Policy Status Report: Uniform Domain Name Dispute Resolution Policy (UDRP)

Filed by: Mona Pisser on behalf of Name Defend Services

M/s: ICANN, We appreciate the chance to publicly comment on this policy.

Brief:

The UDRP process was set in place for obvious cases of trademark abuse and cyber squatting and works well for the large majority of these obvious and black and white cases. The UDRP fails entirely when Panels try to decide more complex and contested cases by applying the so called evolved laws like WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition

The egregious illegality of WIPO's 3 arbitrator panel was exposed in the ADO.COM matter WIPO Case No. D2017-1661"Autobuses de Oriente ADO, S.A. de C.V. v. Private Registration / Francois Carrillo". Every finding of theirs was overturned in court thus exposing not only the sham that the UDRP is, but also the corruption of WIPO and the so called body of decisions WIPO has based their corruipt business model on.

It is high time that the UDRP and the URS are both scrapped and the domain name disputes are settled in court. We must recognize that value of domain names have risen exponentially since when the UDRP policy was first created. The policy now needs to be balanced to recognize both trademark holders AS WELL AS registrant rights.

UDRP Abuse and REVERSE DOMAIN NAME HIJACK

The current UDRP system can encourage dubious disputes, for valuable generic domains.

1) Outside of an RDNH finding, there is no actual penalty for bringing a meritless dispute. Parties will often bring disputes because it is only upside in their view.

The upside is being awarded a domain worth many thousands (or even millions).

The downside is being found guilty of RDNH, which comes with no actual penalty.

2.) There have been some very poor UDRP decisions over the years, many of which were overturned by actual courts, eg. ADO.COM.

This is often because most panelists have decided to arbitrarily redefine the wording of the UDRP policy itself.

This includes -

a. Using "or" instead of "and" when it comes to bad faith.

b. Making judgments based on asking price. Panelists are not appraisal services. Someone either has the right to own a domain or they do not. If they do, the asking price should not be relevant.

c. Some panelists have incorrectly interpreted that offering generic domains for resale is "bad faith" in itself.

UDRP Suggestions -

1) Outside of the most obvious black & white cases, there should be an initial bar to clear when it comes to a dispute involving a domain with an obvious generic use and/or significant value. There should be an initial bar of RDNH and for fair non-commercial or free speech usage which complainants have to pass before this type of UDRP even makes it to a panel. akin to how anti-SLAPP laws work in actual courts.

2) There should definitely be a review process. There should be a way to look at (and correct) any egregious decisions where the UDRP language was incorrectly applied, or other issues are involved.

3) There should be an actual penalty or punishment when it comes to blatant abuse of the UDRP system, specifically when it involves a frivolous dispute where there is an RDNH finding.

4) UDRP possibly but certainly URS should be discontinued. The low cost encourages abuse against legitimate domain name registrants. Ideally it would not be used with any extension, but it should certainly never be applied to legacy extensions.

5) It should be open to invoke the jurusidiction of a competent court at any time before, during and after the proceedings. Notice of such proceeding must act as an absolute bar to the UDRP proceeding continuing.

6) The time period for the losing party to file a court case must be increased to at least 30 days. In the USA a part can file some pro-forma case and get the court stamp and change or amend his pleadings easily. In other jurisdictions it is extremely difficult or impossible to amend pleadings which are originally.filed

7) I support stand of the Brahma University commenter who asks that the Domain name registrant must have the mandatory option of not submitting to the jurisdiction of the Registrar's place of business and being able to opt out of it .

8) Finally something must be done for the numerous small domain name holders having a few domains or exercising their free or non-commercial speech , one of which domains unhappily shares some commonality with a trademark (usually in some other country) of a large corporation with a penchant for litigation and enough money to support their greed. Should a a losing Christian registrant be forced submit to Islamic laws of Dubai if the registrar happens to be CRAZY DOMAINS. The complainants must be put on notice that a losing registrant may file the appeal in a court in his domicile in say Sri Lanka or Somalia, and Complainant cannot duck it

9) Finakly, it must be ensured that there is any eqwual balance maintained in the decsisons in favor of Complainants and Respondents. The present UDRP system is excessively weighted in favor of Trade mark holders and against the domain name holders as it is based on Capitalist laws of USA which favours the monopolists and domain holders to generate excess profits . The cost of a shot of insulin is $20 in USA but only 20 cents elsewhere under socialism. Let us have more socialism in ICANN and UDRP.

The UDRP process was set in place for obvious cases of trademark abuse and cyber squatting and works well for the large majority of these obvious and black and white cases. The UDRP fails entirely when Panels try to decide more complex and contested cases by applying the so called evolved laws like WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition

The egregious illegality of WIPO's 3 arbitrator panel was exposed in the ADO.COM matter WIPO Case No. D2017-1661"Autobuses de Oriente ADO, S.A. de C.V. v. Private Registration / Francois Carrillo". Every finding of theirs was overturned in court thus exposing not only the sham that the UDRP is, but also the corruption of WIPO and the so called body of decisions WIPO has based their corrupt business model on.

It is high time that the UDRP and the URS are both scrapped and the domain name disputes are settled in court. We must recognize that value of domain names have risen exponentially since when the UDRP policy was first created. The policy now needs to be balanced to recognize both trademark holders AS WELL AS registrant rights.