Public Comment is a vital part of our multistakeholder model. It provides a mechanism for stakeholders to have their opinions and recommendations formally and publicly documented. It is an opportunity for the ICANN community to effect change and improve policies and operations.
Dear Sirs,
The Brazilian Intellectual Property Association (Associação Brasileira da Propriedade Intelectual - “ABPI”) would like to present its comments to ICANN’s Policy Status Report: Uniform Domain Name Dispute Resolution Policy (UDRP) Public Comment, as per the lines below.
Efficiency: Does the UDRP provide trademark holders with a quick and cost-effective mechanism for resolving domain name disputes?
Yes, under our associate’s view, the UDRP provides trademark holders with a quick and cost-effective mechanism.
Fairness: Does the UDRP allow all relevant rights and interests of the parties to be considered and ensure procedural fairness for all concerned parties?
No. There are relevant prior rights holders which have been left out of the UDRP system given that the UDRP is only available for trademark holders. For instance, the Brazilian UDRP-equivalent, named “SISTEMA ADMINISTRATIVO DE CONFLITOS DE INTERNET RELATIVOS A NOMES DE DOMÍNIOS SOB ".BR" - DENOMINADO SACI-Adm” (“SACI-Adm”) (available at: https://registro.br/dominio/saci-adm/regulamento/) accepts as complainants the owners of other prior rights, in addition to trademark holders (either registered trademark owners or merely filed trademark application owners) such as the holders of trade names, civil names, family names, notorious pseudonyms or nicknames; singular or collective artistic names, or even prior domain name registrations that conflict with the disputed domain name(s).
Another point to be taken into account is the registration and use requirements of paragraph 4(a)(iii) of the Policy which are conjunctive, and require that a complainant bears the burden of proof on each, leading to cases in which the complainant is able to prove only the use in bad faith but not necessarily the registration in bad faith. The UDRP should also be reviewed to foresee either the registration or use in bad faith so as to endure fairness to all and efficiency against bad faith uses of domain name registrations, ensuring a safer Internet to all users.
Addressing Abuse: Has the UDRP effectively addressed abusive registrations of domain names?
Yes, but only in part, having left other prior rights holders without an equivalent tool to combat bad faith practices and uses of domain name registrations. Theses prior rights holders encompass the holders of trade names, civil names, family names, notorious pseudonyms or nicknames; singular or collective artistic names, or even prior domain name registrations that conflict with the disputed domain name(s).
Under our associate’s view, the UDRP provides trademark holders with a quick and cost-effective mechanism.
There are relevant prior rights holders which have been left out of the UDRP system given that the UDRP is only available for trademark holders. For instance, the Brazilian UDRP-equivalent, named “SISTEMA ADMINISTRATIVO DE CONFLITOS DE INTERNET RELATIVOS A NOMES DE DOMÍNIOS SOB ".BR" - DENOMINADO SACI-Adm” (“SACI-Adm”) (available at: https://registro.br/dominio/saci-adm/regulamento/) accepts as complainants the owners of other prior rights, in addition to trademark holders (either registered trademark owners or merely filed trademark application owners) such as the holders of trade names, civil names, family names, notorious pseudonyms or nicknames; singular or collective artistic names, or even prior domain name registrations that conflict with the disputed domain name(s). Another point to be taken into account is the registration and use requirements of paragraph 4(a)(iii) of the Policy which are conjunctive, and require that a complainant bears the burden of proof on each, leading to cases in which the complainant is able to prove only the use in bad faith but not necessarily the registration in bad faith. The UDRP should also be reviewed to foresee either the registration or use in bad faith so as to endure fairness to all and efficiency against bad faith uses of domain name registrations, ensuring a safer Internet to all users.
Has the UDRP effectively addressed abusive registrations of domain names? Yes, but only in part, having left other prior rights holders without an equivalent tool to combat bad faith practices and uses of domain name registrations. Theses prior rights holders encompass the holders of trade names, civil names, family names, notorious pseudonyms or nicknames; singular or collective artistic names, or even prior domain name registrations that conflict with the disputed domain name(s).