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CYBERLAW

How bias besets domain cases



MICHAEL GEIST

Thursday, August 23, 2001

Earlier this week, I released a study about the Internet Corp. for Assigned Names and Numbers' Uniform Dispute Resolution Policy, or UDRP.

The study attracted considerable attention owing to its very controversial and disturbing finding that the allocation of cases suffers from a systemic bias in favour of trademark holders.

I arrived at that conclusion based on three key findings.

First, forum shopping has become an integral part of the UDRP. ICANN delegates the administration of the UDRP to four dispute resolution providers. Each provider maintains a roster of panelists who serve as judges in deciding the disputes. Complainants, who are invariably trademark holders, have the right to select which provider will handle their case.

The track records of the various providers are a matter of public record, and show that 90 per cent of complainants rationally choose the two providers that feature panelists who render the most pro-complainant decisions.

Second, there is a correlation between the selection of panelists and case outcomes.

UDRP cases are decided by either single or three-member panels. Single-member panels feature one judge chosen exclusively by the arbitration provider.

Three-member panels contain a trio of judges who are selected by both the complainant and the respondent.

This is very significant, because figures show that when providers control who decides a case, the complainants win slightly more than 83 per cent of the time.

As provider influence over panelist selection diminishes, such as in three-member panel cases, the complainant winning rate drops to 60 per cent.

In an attempt to explain this, the study arrives at its third key finding: The higher winning percentage in single-member panel cases may stem from provider bias toward ensuring that perceived pro-complainant panelists decide the majority of domain-name cases.

Although the allocation of cases is supposed to be random, the study finds that this may not be the case.

For example, the National Arbitration Forum, one of the larger dispute resolution providers, has 135 panelists.

However, 53 per cent of its single-panel cases are decided by only six of them. Those six panelists rule in favour of the complainants 94 per cent of the time.

While the study raises some serious questions about the fairness of the ICANN dispute resolution policy, it is important to note that it finds that while the allocation of panelists may be biased, there is no evidence to suggest that the bias extends to the individual panelists themselves.

After careful analysis, the study finds that there are two types of panelists.

The first type, perceived to be pro-respondent, adopts a strict interpretation of the UDRP. This panelist requires complainants to prove each element of their case according to the precise wording of the rules. Otherwise, the respondent keeps their domain name.

The second type, perceived to be pro-complainant, takes a more liberal, interpretative approach to the UDRP. This panelist looks to the spirit of the rules in occasionally finding for complainants, even though each element of the UDRP requirements may not be met.

This difference in approach is exemplified by the requirement for complainants to prove that the respondent registered and used the domain name in bad faith.

Bad-faith registration is often easy to prove -- registering an Internet domain name that is identical to a trademark will usually suffice.

Bad-faith use is more difficult to prove, however. If the registrant just sits on the domain name and does nothing, is that bad-faith use?

Those who adopt a strict interpretation of the UDRP say no; those who adopt a more interpretative approach argue that "non-use" can constitute use.

The problem with bias in the UDRP rests not with these differing views.

The problem instead lies with knowing how specific panelists are likely to interpret the UDRP, and thus how they are likely to rule on a particular case.

If providers assign panelists to domain-name cases based on that information, the issue of bias is very real indeed.
Michael Geist is a law professor at the University of Ottawa Law School and director of e-commerce law at the law firm Goodmans LLP. His Web site is http://www.lawbytes.com.
mgeist@uottawa.ca



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