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.
The attachment is in lieu of completing this Public Comment form.
Vox Populi supports the following concerns, which have been raised by members of the community for over a decade and are more fully described in the UDRP Policy Status Report (2022) and its predecessor, ICANN’s Final Issue Report on the Current State of the UDRP (2011):
· The UDRP Rules should address current inequities including, “forum shopping,…panel appointment rules, such as rotating panelists, and … bias issues.”
· The UDRP should provide clarification or additional guidance regarding free speech as it relates to domain name registration and use; in particular it should address “the fundamental unfairness of the [current] mechanism including ‘the lack of clear fair use provisions and safe harbors.’”
· The UDRP should have a built-in appeals process.
Vox Populi would like to draw particular attention to how forum shopping and bias obstruct free speech. Despite 4(c)(iii) of the UDRP stating "noncommercial or fair use” is legitimate use of a domain name - numerous UDRP decisions contradict the Policy’s express recognition of fair use and free speech rights in favor of trademark owners.
Recently a domain name was awarded to the complainant trademark owner despite the fact that the domain name was registered and used as a non-commercial criticism site. The panelist, in an unfounded grasp, used the ICANN-mandated transfer fee - charged by the registrar - as rationale to find commercial use by the registrant and hence bad faith by the registrant. Because UDRP panel decisions have, de facto, become precedent - these decisions are a threat to domain name registrants - in any (and every) TLD. If ICANN or the community feel a substantive review of the UDRP’s impact on free speech is not warranted, or that a PDP is not the right approach to revising the UDRP, perhaps the community would be inclined to simply revise the UDRP in a manner akin to that which exists in the URS Procedure, specifically, Section 5.8.2 of the URS.