ICANN Intellectual Property Dispute Resolution Process Under Fire for Bias
ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP) process for resolving trademark disputes related to domain registrations"has attracted widespread and intense criticism on several fronts..." for ethical and procedural problems. Among the concerns regarding the UDRP is that it inverts the basic judicial norm of "innocent until proven guilty." Instead, ICANN's UDRP is described by E-Commerce Times as a system where "the burden of proof is not on the 'prosecution' -- as in normal law -- but on the 'defendant.'" Furthermore, "the fact that the complainant trademark owner can choose the venue (resolution provider) for the case is said to create an unhealthy practice called 'forum-shopping.'" Karl Auerbach, a former member of ICANN's Board of Directors, states that "the UDRP system is highly biased, in that it induces the UDRP decision-maker to decide in favor of the plaintiff, because the plaintiff is the one who picks the decider." Mr. Auerbach also stated that the, "UDRP is first a weapon which can only be used only by those owning trademarks. If you have a church or a god or a school or a theater company or whatever, you don't have a trademark in it, and you can't use the UDRP to protect your rights. Why do these names lose out to trademarks? Only because the trademark people wrote the UDRP. It was railroaded through ICANN without any real public process." E-Commerce Times noted that "many others" agree with Mr. Auerbach and that about "80 percent of UDRP cases are decided in favor of the plaintiff." An official with the World Intellectual Property Organization's Arbitration and Mediation Center that arbitrates UDRP cases disagrees with the criticisms and believes that the high rate of cases decided in favor of the plaintiff is "simply proof of how often disputed names are in fact registered in bad faith." However, the key issue is not whether or not a given share of complaints are justified but whether the procedures, and the process for developing them, adhere to an open, unbiased and transparent process.