Uniform Rapid Suspension (URS) Almost a Done Deal: Bad News for Domainers?

[Ms Domainer]

*

It looks as though URS (Uniform Rapid Suspension) is about to be a done deal and does NOT look like good news for domain owners.

One particularly troublesome aspect is the "automatic default" aspect: if a respondent doesn't answer within 14 days, the domain is automatically awarded to the complainant.

It's supposed to apply to the "worst of the worst" offenses, but we all know what really happens: greedy companies and shady lawyers overreach and try to snag iffy generic domains (and sometimes win).

In this case, what happens if the owner is away for two weeks (or otherwise incapacitated), and a URS is filed?

IMO, it should be be more difficult to take away someone's domain, not easier.

Here is a link to the CircleID article:

http://www.circleid.com/posts/20120817_its_time_to_put_a_bow_on_the_urs_our_work_is_almost_done/

*

 

[Kate]

Probably not the way we want UDRP to be reformed.
While I sympathize with the plight of TM holders the balance is tipped in favor of corporate interests.

For instance complainants that are found to be abusing the system (guilty of reverse domain hijacking) should face penalties, not just the filing fee and possibly some bad rep. $1500, even 5K is a cheap lottery ticket for a high profile domain, and some 'end users' have got the message.

By the way some (cc)TLDs already have URS-like procedures, or lose-by-default. I believe .uk is one of them.

 

[bmugford]

*
One particularly troublesome aspect is the "automatic default" aspect: if a respondent doesn't answer within 14 days, the domain is automatically awarded to the complainant.

Cool, just wait for someone to go on vacation or die then file a dispute for one of their valuable generics and win it by default.

UDRP is already abused now, never mind URS.

Here is how I would reform UDRP -

These are the changes I think need to be made, at minimum -

1.) UDRP actions should always be deferred to court if there is a pending case.
UDRP has no legal jurisdiction, it is an arbitration panel. This was a major issue in the Vanity.com case, yet other panels recently did the right thing.

2.) There needs to be a serious penalty for bringing frivolous disputes. UDRP was designed for obvious TM cases, not to steal generic assets.

Right now even with a RDNH finding there is no penalty.

3.) There needs to be a step in the process where the panelist can ask questions for clarification to both the complainant and respondent, like in an actual court.

4.) There needs to be a certain bar to cross to even make it to a panelist.

5.) There needs to be an appeals process.

6.) All panelists should be forced to take a training class designed by ICANN. There should be clear precedents established. Right now you can have the exact opposite rulings on the whim of (1) panelist.

7.) There needs to be a different funding system established. The complainant basically paying the judge creates a potential conflict of interest to start with.

Brad

 

[dompro]

One particularly troublesome aspect is the "automatic default" aspect: if a respondent doesn't answer within 14 days, the domain is automatically awarded to the complainant.

ARE THEY NUTS?
that is "guilty unless proven otherwise"

 

[Name Trader]

I hear you Brad. Unfortunately ICANN are blind.

 

[Kate]

1.) UDRP actions should always be deferred to court if there is a pending case.

Sounds reasonable. But in some jurisdictions cases could drag on for years with no resolution in sight.
What if a squatter files a bogus lawsuit in a tinpot banana republic where judges can be bought ? He gets to keep a domain that should be taken away from him.
The majority of UDRPs are won by the complainants, for good reasons.

2.) There needs to be a serious penalty for bringing frivolous disputes. UDRP was designed for obvious TM cases, not to steal generic assets.

Sure, do you mean a monetary penalty ? The problem would be to enforce that, especially abroad.

4.) There needs to be a certain bar to cross to even make it to a panelist.

Well, there is one: the filing fee

URS is different than UDRP.
With URS the burden of proof is higher. Anybody can file a UDRP, but not anybody will be allowed to use URS.

5.) There needs to be an appeals process.

URS has one

In .uk there is the possibility to appeal a DRS but it costs £3,000. At that price you could as well go to court.
You can always have a ruling overturned by going to court.

Besides:

10. Abusive Complaints
10.2 If a Complainant has been held to have filed abusive complaints on three occasions, the
Complaint shall be barred from utilizing the URS for one‐year following the date the last
of the three Complaints was determined to be abusive. [Defining Abusive Complaints
remains under consideration.]

http://archive.icann.org/en/topics/new-gtlds/draft-proposed-procedure-urs-04oct09-en.pdf

6.) All panelists should be forced to take a training class designed by ICANN. There should be clear precedents established. Right now you can have the exact opposite rulings on the whim of (1) panelist.

Disagree. Icann is not in a position to teach lessons or set good practices. Besides, I believe the majority of panelists are lawyers or have at least a decent legal background. They know how to do their job.

7.) There needs to be a different funding system established. The complainant basically paying the judge creates a potential conflict of interest to start with.

This is definitely an area where there is room for improvement.
A few years ago the National Arbitration Forum (NAF) stopped arbitrating credit card disputes (they don't just deal with domain disputes) as they were found to be biased in favor of credit card companies.
Speaking of NAF, they have had a few more shortcomings. Nobody's perfect eh ?

UDRP and the likes are just arbitration procedures, they do not offer the same guarantees as a trial. At the end of the day the panelists have a lot of discretionary power.

My understanding is that URS is not going to replace UDRP, it will be an alternative procedure for the most obvious violations.

I see that domainers rehash the usual stuff on their blogs, about big business conspiring to steal our domains and how the UDRP is so flawed and the world hates us. There in some truth in that, and URS may not be perfect but... who actually read the URS proposal ? I should have paid more attention before posting uneducated comments in this thread - always check the source folks, hearsay is just that: hearsay :gl:

 

[bmugford]

Sounds reasonable. But in some jurisdictions cases could drag on for years with no resolution in sight.
What if a squatter files a bogus lawsuit in a tinpot banana republic where judges can be bought ? He gets to keep a domain that should be taken away from him.
The majority of UDRPs are won by the complainants, for good reasons.

It would need to be filed in mutual jurisdiction -

Mutual Jurisdiction means a court jurisdiction at the location of either (a) the principal office of the Registrar (provided the domain-name holder has submitted in its Registration Agreement to that jurisdiction for court adjudication of disputes concerning or arising from the use of the domain name) or (b) the domain-name holder's address as shown for the registration of the domain name in Registrar's Whois database at the time the complaint is submitted to the Provider.

Sure, do you mean a monetary penalty ? The problem would be to enforce that, especially abroad.

Any kind of penalty including monetary. There needs to be a negative consequence for abusing the system.

Well, there is one: the filing fee

The filing fee is nothing when it comes to winning a potentially six figure generic asset.

URS is different than UDRP.
With URS the burden of proof is higher. Anybody can file a UDRP, but not anybody will be allowed to use URS.

Well it better be higher if they are just willing to turn over assets by default with no response. 14 days is an extremely short period of time.

Disagree. Icann is not in a position to teach lessons or set good practices. Besides, I believe the majority of panelists are lawyers or have at least a decent legal background. They know how to do their job.

I don't care who creates the course. There needs to be some standard process.

You can't have different judges deciding completely different things on the same type of cases.

There is absolutely no precedent that is respected in UDRP.

The decision on the Vanity.com case was among the most absurd I have ever seen.

Either the panelist needs more training in TM law, or the fix was in.

ICANN is a kangaroo court.

A kangaroo court is "a mock court in which the principles of law and justice are disregarded or perverted".

My understanding is that URS is not going to replace UDRP, it will be an alternative procedure for the most obvious violations.

I hope so, but UDRP was supposed to be for obvious TM issues as well, but it has turned into a generic domain lottery.

Brad

 

[Kate]

<Devil's advocate>

I don't care who creates the course. There needs to be some standard process.

Well there is one right ?
For a complaint to succeed there are three criteria that must be met. Decisions are not completely arbitrary. However, the panelists have discretion to appreciate the evidence that is submitted to them. That's where the human factor comes into play.

You can't have different judges deciding completely different things on the same type of cases.

I'm afraid we can. Even a court of law may contradict another. That's why we have appeals in the legal system.

There is absolutely no precedent that is respected in UDRP.

Most decisions have references to past/similar cases so I wouldn't say precedence is ignored.

The decision on the Vanity.com case was among the most absurd I have ever seen.

Yes, there is some BS.
The part about the godaddy appraisal is hilarious.
Note that the panelist was Diaz, the same Diaz that was involved in the 'revised decision' (see my post above).
I have no doubt that some panelists are unfit for the job.

In the Vanity.com case here is the killer:

Respondent is using the disputed domain name to direct consumers to its own website offering information, blogs, chat groups, and social media links on beauty, fashion, health, and self topics;

Classic.

BTW I'm not even saying that justifies loss of the domain, but LLL.com have been lost in exactly the same way, this case was not much different and certainly not unprecedented.

I hope so, but UDRP was supposed to be for obvious TM issues as well, but it has turned into a generic domain lottery.

That is my concern as well. No question that there have been troubling decisions but we need to keep our heads cool and avoid the domainer hysteria.
Generally speaking, I think the UDRP has done the job adequately. I believe it could be improved by screening the panelists and assessing their performance. There has to be accountability.
I'm not naive, I know that there is bias and untold conflicts of interests.

BTW I can confirm that URS will not be a replacement for UDRP.

</Devil's advocate>

 

[HeyNow]

You Should Have Seen It Coming

ICANN is not blind, but rather watching very closely as typosquatters, auction fraudsters, cybersquatters, and other ethically-challenged individuals and entities are heralded, praised, and portrayed as heros in the domainer community.

Every week these scumbags are given credibility by domain "news" sites, and many of you bozos here kneel and kiss the hand of the publisher(s) of the "news" site(s). I read comments like, "Thanks Ron, keep up the good work ...," when, in my humble opinion, "Ron" is actually sticking the shiv deeper into the heart of the domain aftermarket community by highlighting, in a positive fashion, typosquatters, auction cheats, and other assorted scumbags.

Those of you who perpetuate the status quo are doing all of us NO FAVORS. As a result, ICANN is making it easier to yank domains from hoarders, typosquatters, and thieves.

You only have yourselves to blame. Get real, stop crying, stop the BS and recognize the cesspool you are in for what it is. Clean up the glad-handing circle-jerk of nefarious characters, and ICANN will take notice.

Go ahead, do it. It's what you need.