Re: [ga] WIPO Arbitrators Stern In Domain 'Hijacking' Rulings

[Sandy Harris <sandy@storm.ca>]

Dan Steinberg wrote:
> 
> This is all fine and well, but requires going to court. The URDP was brought in
> originally so trademark holders did not have to go to court. It was even agreed
> in testimony before the WIPO roadshow that existing courts offered remedy in
> almost all the cases, but that the UDRP was needed so they wouldnt be faced with
> the option of settling to pay 'cybersquatters' (their term not mine) rather than
> going to court.
> 
> So, if the URDP is there so TM holders don't have to go to court for remedy,
> should it not be the same for domain holders?

As I see it, the fundamental flaw in UDRP is asymmetry. It is binding on
the victim, but not on the attacker. The contract between registrant and
registry binds the registrant to submit to UDRP. Nothing like that binds
the complainant. If they lose in UDRP proceedings, they are free to go to
court instead.

Methinks anyone bringing a UDRP complaint should have to agree up front
to be bound by the decision. If they lose, we cannot stop them from then
going to court, but we can give the victim a copy of that contract and of
the UDRP panel's decision.

In fact, we could go further. If we're going to have a UDRP, then the
associated contracts should bind the registrar not to disconnect any
domain except for non-payment, UDRP decision or court order, and to
oppose (assisted by ICANN lawyers) any attempt to obtain such an order
without UDRP.

Arguably, we'd be better to just scrap UDRP entirely and let trademark
issues go back to the courts where they belong, but if we're going to
have a UDRP then it should be symmetrical and, as far as possible,
vigorously enforced.
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