One of complaints against UDRP is inconsistency in decision-making. This comes about because Panels are not obliged to follow precedent, although on many issues they mostly do. WIPO Overview at paragraph 4.1 states as a consensus: “The UDRP does not operate on a strict doctrine of precedent. However, panels consider it desirable that their decisions are consistent with prior panel decisions dealing with similar fact situations.” The general view which was formed early in the jurisprudence is that decisions “should consist of more than, ‘It depends [on] what panelist you draw’,” Time Inc. v. Chip Cooper, D2000-1342 (WIPO February 13, 2001). Yet, it is seen that for some issues it really does depend on “what panelist you draw.”
On certain issues there is a clear division of view, not more so than in considering speech. Some panelists agree that the content is protected but not the domain name. Others believe that the freedom to speak is both the wrapping and the content. The second view is sometimes parochially thought of as the American model (a Constitutional right), but there are many examples from other legal cultures that it is not so limited. It is unusual to get decisions filed on the same day involving the same respondent, one expressing the restrictive view and the other the protective one. October 26 was a banner day. Vince Andrich v. AnonymousSpeech AnonymousSpeech, FA1109001406333 (Nat. Arb. Forum October 26, 2011) (, transferred); and, Dr. A. Scott Connelly v. AnonymousSpeech AnonymousSpeech, FA1109001406376 (Nat. Arb. Forum October 26, 2011) (ascottconnelly.com>, denied).
The Panel in Vince Andrich believes that “Respondent could have used other means to criticize, and/or publicize about, Complainant.” It is wrong, in other words, to use the identical name for a commentary/criticism website. Underlying this view although not explicitly stated is the theory of “initial interest confusion.” It misleads the Internet user and disrupts the complainant. The Panel continued:
The significance being that Claimant has a commercial operation which viability would be interrupted by the confusing similarity of the domain name. Respondent’s right to freedom of speech and the First Amendment protection would not allow this abuse. Respondent, at the minimum, should be required to use a less intrusive method to criticize the Claimant.
The rationale is that “[r]espondent’s right to exercise freedom of speech does not extend to an entitlement to disseminate [his] view by deliberately and misleadingly cloaking [himself] in the name of the Complainant in order to maximi[z]e the number in [his] audience.” Anastasia Int’l Inc. v. Domains by proxy Inc./rumen kadiev, D2009-1416 (WIPO January 18, 2010).
The opposite view is that which is held in Scott Connelly, namely that “respondent’s registration of a domain name containing an identical or confusingly similar mark [should not be regarded as a] bright line barrier to legitimate noncommercial or fair use.” The problem is divided into two parts, theory and practice. “The Panel’s analysis does not end with its decision to adhere to View 2. The Panel must address the considerations other panels have recognized as relevant in assessing whether, for UDRP purposes, a respondent with a criticism site has a right or legitimate interest in a domain name that is identical or confusingly similar to a complainant’s mark,” citing Midland Heart Ltd. v. Black, D2009-0076 (WIPO Mar. 30, 2009).
While an identical or confusingly similar domain name is no “bright line barrier” (theory), the content has to be what it purports to be (practice). To conclude that the complainant fails to prove its prima facie case that respondent lacks rights or legitimate interests, however, is not a determination that the Respondent has not published an actionable defamation of the Complainant. It simply belongs in a different forum. Thus,
Nothing in this decision, of course, should be construed as an endorsement of either Respondent’s statements or his tactics. Complainant argues that much of what is on Respondent’s site is false and defamatory and Respondent makes little if any effort to rebut that contention.
The question of “false and defamatory” is for a court of law: “recourse does not lie in the Policy, which is limited to resolving clear instances of cybersquatting.”