Dispute Resolution Service
13 March 2001
I have read your review and proposed policy with some interest. Initially I was concerned that you had sought to ignore the important issue of whether the registrant of a disputed domain name has any rights in the name, but on further consideration of that point I have changed my mind.
Under the UDRP this is, of course, an essential element, but one that requires the Complainant to prove a negative. The only practical alternative is to require the Registrant to establish that s/he has some form of right to use the domain name in question, but this reversal of the burden of proof may rightly be regarded as unjust, particularly in the light of the Human Rights Act.
Nevertheless, the inclusion of this requirement was important to the UDRP as it served to protect genuine protest or commentary sites. I see instead that you have specifically included protection for these purposes under the bad faith section, which may, in any event, be the logical place to find such protection.
The single most impressive advantage of the proposals (from a neutral perspective) is the inclusion of the rules on reverse hijacking. This is an issue that seems to have been added to the UDRP as an afterthought. There is no guidance and no form of punishment. The "3 strikes" rule you have proposed makes a great deal more sense, and will force trademark owners to consider very carefully each case before raising a complaint.
I would make one further suggestion. It would be immensely useful if the proposed policy could avoid the UDRP's restrictions on who can make a complaint. I have represented several clients under attack from rights owners, and in these cases it would have proved very useful to pre-empt the other side's bluster by making a referral under the policy. I fully appreciate that such a decision cannot bind a rights owner, who can simply issue proceedings and bring the matter to trial at Court. However, a well thought out arbitration decision would be persuasory for the purposes of litigation, and the initial referral could be seen by the Court as an important sign of the Registrant's good faith.