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Canadian Journal of Law and Technology

Keywords

domain name registration and disputes

Abstract

The UDRP has proven to be an effective means of resolving domain name disputes. There are, however, a number of shortcomings in the UDRP that affect its legitimacy and fairness. The most glaring of these lies in the failure to delineate the elements outlined in section 4(a) of the UDRP and in the application of Rule 15(a) of the Rules for Domain Name Dispute Resolution Policy (the ‘‘Rules’’).4 These shortcomings have resulted in inconsistency in the decisions of arbitral panels. As it stands, complainants are unable to ascertain the case they must meet in order to succeed and respondents are unable to be certain of the terms of their registration contracts. These problems have been compounded by the lack of an appeal tribunal that could provide interpretive guidance, and whose decisions would be binding on the lower arbitral panels. These shortcomings undermine the legitimacy of the UDRP as a legal process, and have created the perception that the UDRP is, at best arbitrary, and at worst unjust. They represent a fundamental failure in terms of the objectives of the UDRP, which have been expressed as including the following:

(a) The procedure should allow all relevant rights and interests of the parties to be considered and ensure procedural fairness for all concerned parties; and

(b) The procedure should be uniform or consistent across all open gTLDs.

We propose that the UDRP be amended so that panels can apply specific definitions that outline the constituent elements of section 4(a). Furthermore, Rule 15(a) should be amended so that adjudication of disputes would be achieved by exclusive reference to the UDRP without reference to legal principles of particular jurisdictions. Finally, an appeal tribunal should be constituted so that panels and parties could have recourse to a body of well-established UDRP precedent.

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