The domain community is well aware of the UDRP, but other registrants are less familiar with the contractual matrix that binds them to a mandatory arbitration. At the request of the Provider upon receiving a complaint the Registrar is required to confirm the following basic information: “the domain name is registered with it; the Respondent is listed as the registrant of the domain name; the current contact details for the respondent are as given in the Complaint; and [English or another language] is the language of the registration agreement.”
The authority for hauling a domain name registrant into a UDRP proceeding to answer a trademark owner’s complaint that the registration is abusive is found in a contract provision incorporated in the respondent’s registration agreement. By signing the registration agreement the respondent assents to a mandatory administrative proceeding to determine rights to a disputed domain name where a trademark complainant asserts a claim of abusive registration. More likely than not, the arbitration panel is either sitting in a different country or remote from the registrant’s home state. “The Policy” (as the Panel in Aubert France SA v. Tucows.com Co. noted) “is of international scope and the framers required it to be capable of practical application by a panelist that might be drawn from any jurisdiction (and more often than not a panelist who would not be drawn from the jurisdiction of either of the parties to a dispute).”
Why should an arbitration be mandatory where the parties are strangers to each other? The question is important because as a matter of law no party can be compelled to arbitrate a dispute. Ordinarily, parties must mutually agree to waive the right to be heard in a court of law. What is unusual with the UDRP is that while arbitration is a non-negotiable feature of the registration agreement it is not a bilateral contract with the trademark holder. Trademark holders aggrieved by violation of their rights are third-party beneficiaries to a weave of contracts between ICANN and the Registrar on the one hand and the Registrar and the Registrant on the other.
The terms incorporated into the registration agreement are dictated by ICANN to its accredited Registrars who alone are authorized to register domain names pursuant to a Registrar Accreditation Agreement (“RAA”). The latest version of the RAA dated May 21, 2009 is available at <http://www.icann.org/en/registrars/ra-agreement-21may09-en.htm>. The RAA contains two provisions as conditions for registration of a domain name. In the first, “The Registered Name Holder shall agree that its registration of the Registered Name shall be subject to suspension, cancellation, or transfer pursuant to any ICANN adopted specification or policy” [Art. 220.127.116.11]. The second requires the Registrar to “have in place a policy and procedures for resolution of disputes concerning Registered Names … [which u]ntil different policies and procedures are established by ICANN under Section 4, Registrar shall comply with the Uniform Domain Name Dispute Resolution Policy” [Art. 3.8]. Acceptance of the provisions in the registration agreement that incorporates the UDRP is a condition for registering a domain name.
The registrant’s agreement to submit to a mandatory proceeding is joined with a representation and warranty provision that its choice of domain name “will not infringe upon or otherwise violate the rights of any third party” [Para. 4 of the Policy]. The UDRP is designed to determine whether the registration does infringe upon or otherwise violate the rights of the trademark holder and if it does the respondent forfeits the disputed domain name.